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Entries by Bruce Freeman

MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW, SIMILARLY THE MOTION VACATE THE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to vacate the default judgment should have been granted as a matter of law (no showing of a meritorious defense was required) and the motion to vacate the note of issue and the certificate of readiness should have been granted as well: “As a general rule, […]

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COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT).

The Second Department determined the fraud cause of action against the property insurer which had disclaimed coverage should have been dismissed.  Plaintiff was injured on property owned by defendant Kirit and insured by nonparty Liberty Mutual Insurance. The fraud cause of action based upon alleged misrepresentations about the insurance coverage made to plaintiff by Kirit […]

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THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:” We agree with […]

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SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the snow removal contractor's (O & M's) motion for summary judgment in this parking lot slip and fall case should have been granted: “As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries […]

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PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case was properly denied. The medical-treatment excuse was inadequate. The late notice of claim which petitioner attempted to serve on the city was rejected. It therefore was a nullity which would not be deemed to […]

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THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT).

The Second Department, remitting the matter for resentencing, determined defendant should not have been sentenced as a second violent felony offender because the People did not demonstrate the equivalency of the California robbery statute. The court noted that illegal sentence would survive a waiver of appeal and the issue would be reached in the interest […]

PLAINTIFF FELL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY GRANTED (SECOND DEPT),

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) and 241 (6) causes of action. Plaintiff fell from a scaffold that did not have safety railings: The plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) and that this violation was a […]

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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S MURDER CONVICTION REVERSED FOR THREE REASONS; FAILURE TO GIVE THE ACCOMPLICE IN FACT JURY INSTRUCTION, PROSECUTORIAL MISCONDUCT, AND INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department, in the interest of justice, reversed the defendant's murder conviction because (1) the trial judge failed to give the accomplice in fact jury instruction, (2) prosecutorial misconduct and (3) ineffective assistance in failing to object to the prosecutor's statements and failure to request the accomplice instruction: During her summation, the prosecutor stated […]

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INSURANCE AGENCY ALLEGED FRAUD ON THE PART OF THE INSURED WHICH RESULTED IN A LOWER PREMIUM, THE COMPLAINT ADEQUATELY ALLEGED A FRAUD CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for fraud and should not have been dismissed. The plaintiff, an insurance agency, alleged the defendant insured (Aminov) misrepresented its gross income, and therefore paid a lower premium: “The elements of a cause of action to recover damages for fraud are […]

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