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Entries by Bruce Freeman

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APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT).

The Second Department determined the appellant, Rajic, had exercised undue influence over the decedent resulting in decedent's signing over her home to Rajic and providing a satisfaction of mortgage to Rajic for a fraction of the amount due. The satisfaction of mortgage was nullified and the foreclosure action brought on behalf of the estate was deemed […]

BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Macchia) should have been given an extension of the period to file a summary judgment motion based upon the referee's grant of extra time to complete discovery: Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The […]

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PEDESTRIAN PLAINTIFF’S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants demonstrated plaintiff's emerging from between parked cars and attempting to cross the street where there was no crosswalk constituted the sole proximate cause of the pedestrian-vehicle accident … [T]he defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff, given his actions […]

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NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the […]

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QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT).

The Second Department determined questions of fact raised by the police reported precluded summary judgment in plaintiff's favor in this rear-end collision case. Although the police report included inadmissible statements, plaintiff waived any objections by submitting the report with the motion papers: … [T]he plaintiff failed to establish his prima facie entitlement to judgment as […]

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LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment was properly denied because the law-office-failure excuse was insufficient: ” A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious […]

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DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion to cancel and discharge the mortgage based upon the expiration of the statute of limitations should have been granted. The court noted that Supreme Court's imposition of an equitable mortgage was improper under the facts: RPAPL 1501(4) provides that “[w]here the period allowed by the applicable […]

ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER’S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although defendants received timely notice of a lawsuit, they were never served with the summons and complaint. The affidavit of the process server demonstrated due diligence in a failure to serve defendants, residents of Israel, at a New York address. The default judgment, therefore, was a nullity: […]

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MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT).

The Second Department determined defendant's motion to set aside his conviction was properly denied. The defendant argued that the complainant's version of events as stated in the presentence report was newly discovered evidence because it differed from the complainant's trial testimony. The court held that the unsworn presentence report did not meet the statutory requirements […]

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DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant was improperly sentenced as a second felony offender. The issue was not preserved but was reviewed in the interest of justice: The predicate felony statement filed by the People did not set forth the dates of the defendant’s incarceration since the commission of his prior felony in […]

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