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Entries by Bruce Freeman

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FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the respondent father had rebutted the presumption that the child’s medical condition was caused by abuse with medical evidence. Because the neglect and abuse petition relied entirely on the statutory presumption, the neglect and abuse findings were not supported: Family Ct Act § 1046 (a) (ii) provides that petitioner may establish […]

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BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate standing to bring the foreclosure action: Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of […]

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PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application to impose sanctions against defendant’s attorney for frivolous conduct should have have been granted: … [T]he Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR […]

PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the voluntary support and legal-obligations payments made by husband to wife should have been credited against the arrears owed by him: Voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor […]

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PLAINTIFF OFFERED DIFFERENT EXPLANATIONS OF THE CAUSE OF HIS FALL, COURT HELD PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL, REQUIRING DISMISSAL (SECOND DEPT).

The Second Department determined plaintiff’s action in this slip and fall case was properly dismissed. Plaintiff had offered several different allegations about the cause of his fall. The court held plaintiff was unable to identify the cause of his fall: The defendant established its prima facie entitlement to judgment as a matter of law by […]

FAILURE TO TIMELY FILE CERTIFIED MINUTES OF THE CONVENTION REQUIRED REMOVAL OF TWO CANDIDATES FOR SUPREME COURT FROM THE BALLOT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the failure to timely file the certified minutes of the convention of the Democratic Committee for the Thirteenth Judicial District required removal of the names of two Supreme Court Justice candidates from the ballot: Under the statutory scheme, as to nominations flowing from a judicial nominating convention, certificates […]

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PLAINTIFF IN THIS LABOR LAW 240 (1) ACTION WAS INJURED WHEN THE ROOF OF THE BUILDING COLLAPSED, HIS ACTION AGAINST HIS EMPLOYER (A DEMOLITION COMPANY) WAS BARRED BY THE EXCLUSIVITY PROVISIONS OF THE WORKERS’ COMPENSATION LAW, QUESTION OF FACT WHETHER THE COLLAPSE WAS FORESEEABLE IN THE ACTION AGAINST THE BUILDING OWNER, EVIDENCE THAT BEAMS HAD BEEN CUT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240 (1) action against his employer (a demolition company) was barred by the exclusivity provisions of the Workers’ Compensation Law. Plaintiff fell when the roof of the building collapsed. Plaintiff’s motion for summary judgment against the owner of the building was properly denied because there was a question […]

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ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS): On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the […]

IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT).

The Second Department, remitting the matter for a hearing on equitable estoppel in this paternity proceeding, determined that generic marker testing should not have been ordered without first resolving the equitable estoppel issue: Family Court Act § 532 provides that, in a proceeding to establish paternity, “on the court’s own motion or the motion of any […]

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