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Entries by Bruce Freeman

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FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT).

The Second Department determined Family Court should not have left it to the parties to work out mother’s supervised therapeutic parental access: Here, the Family Court’s determination that there had been a change in circumstances and that it was in the children’s best interests to award the father sole legal and residential custody, with the […]

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COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judge should not have ordered the payment of attorney’s fees for frivolous conduct without allowing the affected party to be heard on the question: “The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, . […]

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SIGNATORY TO AGREEMENT WITH AN ARBITRATION CLAUSE CANNOT AVOID ARBITRATION SIMPLY BECAUSE PARTIES ENTWINED IN THE PROCEEDINGS ARE NOT SIGNATORIES (SECOND DEPT).

The Second Department determined that a signatory to an agreement with an arbitration clause could not avoid arbitration because other parties entwined in the matter were not signatories: … Supreme Court should have denied that branch of Garnick’s motion which sought a permanent stay of arbitration of the claims against him by Teitelbaum and Coluccio, […]

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PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined the plaintiff’s verdict in this subway slip and fall case should be set aside as against the weight of the evidence. The trial evidence indicated comparative fault on the part of the plaintiff. Plaintiff stepped into a gap between the train and the platform, just after she had stepped over it. […]

STATUTE OF LIMITATIONS FOR A DECLARATORY JUDGMENT ACTION IS DETERMINED BY THE NATURE OF THE UNDERLYING ACTION, HERE CONVERSION AND FRAUD (SECOND DEPT).

The Second Department noted that there is no specific statute of limitations for a declaratory judgment action the applicable limitations period is determined by the nature of the underlying action, here conversion and fraud: “Actions for declaratory judgments are not ascribed a certain limitations period. The nature of the relief sought in a declaratory judgment […]

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DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT). ​

The Second Department, reversing Surrogate’s Court, determined deeds executed by decedent’s cotenants should not have been set aside. Because decedent died intestate, the cotenants’ interests in the real property vested upon death and the cotenants could validly convey their interests in the property: The Surrogate’s Court should not have granted those branches of the petition […]

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LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT).

The Second Department affirmed Family Court’s denial of father’s petition for downward modification of maintenance and support and the rejection of father’s claim he was denied effective assistance of counsel. The court noted that father did not demonstrate he was not at fault for losing his job and that, because father did not have a […]

ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the Family Court judge exhibited bias against the father in this maintenance and support arrears proceeding and the matter was remitted to Family Court before a different judge. Although father had completed the period of incarceration imposed, the commitment order was deemed appealable because of the stigma […]

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the continuous representation doctrine tolled the statute of limitations. Defendant attorney (Weiss) were hired by plaintiff to bring a personal injury action. The legal malpractice action was filed more than three years after the statute had run on the personal injury […]

DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION FOR THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear end collision case should not have been granted. Although plaintiff made out a prima facie case (because there is no longer any need to demonstrate freedom from comparative fault in the motion papers), defendant alleged plaintiff suddenly changed lanes and […]

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