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Entries by Bruce Freeman

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BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek indemnification from […]

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PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. Plaintiff did not provide sufficient proof demonstrating it provided the notice required by RPAPL 1304: … [T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting his own affidavit attesting that he had not […]

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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct: In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney […]

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IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a class action stemming from the loss of power during Hurricane Sandy, determined: (1) the public was a third-party beneficiary of a contract between National Grid and the Long Island Power Authority (LIPA); (2) the public was subject to the arbitration clause in the contract; and (3) […]

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STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a stipulation allowing the mother to relocate cannot be put into effect absent a hearing examining the best interests of the children: On March 13, 2014, the parties executed a custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce. The parties […]

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TAX FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined the county’s attempt to foreclose on tax liens was a nullity because the property owners had died and no representative of the estate had been appointed under the Surrogate’s Court Procedure Act (SCPA) or the CPLR. The dissent argued that an in rem proceeding […]

SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT).

The Second Department determined: (1) under the statutory law in force at the time, a finding of severe abuse could not be made against anyone other than a legal parent; and (2), the presumption that the mother’s  husband (John F) is the father of the children was conclusively rebutted by the allegation in the DSS petition that George […]

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AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that an accounting was required in this action for partition by joint tenants with the right of survivorship: “Under New York law, joint tenancies may be severed by the court-ordered partition of the property that adjusts the rights of the parties and permits its sale if it appears […]

TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a local town code provision (called a Holdback Provision) was not authorized by the Town Law and was therefore unenforceable. The town code provision authorized the town to hold back on issuing building permits in plaintiff builder’s subdivision until certain required infrastructure components (roads, lights, etc.) were […]

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NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT).

The Second Department determined that the negligent supervision cause of action against the school district was properly dismissed. Infant plaintiff, a student who had a one-on-one aide, was injured when she went to the bathroom unaccompanied. She caught her finger in a bathroom door: While a school district is not an insurer of the safety of […]

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