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Entries by Bruce Freeman

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SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate: “To obtain relief from a conditional order of […]

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SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined (1) seller did not demonstrate the time of the essence letter gave buyer sufficient time and (2) seller did not demonstrate the ability to close on that date. Therefore seller's motion for summary judgment in this specific performance action was properly denied: In order to make time of the essence, “there […]

INSURER DID NOT DEMONSTRATE THE INSUREDS’ LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff's motion for summary judgment against the defendant insurer should have been granted. Plaintiff was involved in an automobile accident with the insureds [Onwuzurulke and Noel]. The defendant insurer disclaimed coverage on the basis of the insureds' alleged lack of cooperation with the investigation. The Second Department held […]

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CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the law-office-failure offered as an excuse for failure to comply with a conditional order in this foreclosure action was not sufficient to justify vacating the dismissal of the action: To vacate the dismissal, HSBC was required to demonstrate a justifiable excuse for the noncompliance with the conditional […]

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DETECTIVE’S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the detective's testimony that the complainant picked the defendant out of a lineup constituted inadmissible bolstering. The issue was reviewed in the interest of justice (error not preserved); The defendant has not preserved for appellate review his contention that the prosecutor improperly elicited testimony from a detective stating that […]

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STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment in this defamation and injurious falsehood action should have been granted. The allegedly defamatory statements were made by defendant Dimino who was hired to assess the reasons for gas leaks at a school. The defendant concluded the gas leaks were the result of […]

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SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT’S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT).

The Second Department determined defendant juvenile offender could not move to suppress his presentence report in subsequent Department of Homeland Security proceedings: The defendant, an immigrant from Bangladesh, was adjudicated a youthful offender. After completing his sentence, the defendant was detained by the United States Department of Homeland Security (hereinafter the DHS), which, in reliance […]

DEFAULT NOTICE WAS NOT A CLEAR AND UNEQUIVOCAL ACCELERATION OF THE MORTGAGE, THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION DID NOT START RUNNING FROM THE DATE OF THE NOTICE (SECOND DEPT). ​

The Second Department determined the language in a letter was not sufficient to trigger the acceleration of the debt, which, in turn, would have started the the running of the statute of limitations for a foreclosure action: In June 2005, nonparty Cecilia Adebola executed a promissory note in the sum of $549,000 in favor of […]

PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that plaintiff's motion for summary judgment in the pedestrian-vehicle accident case should have been granted. Plaintiff, a New York City Police Department traffic enforcement agent, was walking in the road when he was struck by defendant's vehicle. Plaintiff's motion for summary judgment should have been granted because plaintiff did […]

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