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Entries by Bruce Freeman

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NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant fencing club's motion for summary judgment in this negligent hiring and supervision, negligent infliction of emotional distress action should have been granted. A fencing coach (Kfir) who worked for the club engaged in an unlawful sexual relationship with infant plaintiff, for which the coach  went to prison. The Second […]

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EXPERT AFFIDAVIT DID NOT DEMONSTRATE, PRIMA FACIE, THAT DEFENDANT DOCTORS DID NOT DEPART FROM GOOD AND ACCEPTED PRACTICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert affidavit submitted by defendant emergency room defendants was insufficient to eliminate a question of fact whether the doctors departed from good and accepted medical practice. Plaintiff alleged his sports related injury was not correctly diagnosed in the emergency room: The plaintiff … submitted an affirmation from an […]

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LETTER DID NOT ACKNOWLEDGE THE DEBT AND THEREBY REVIVE A TIME-BARRED FORECLOSURE ACTION, MORTGAGE PROPERLY CANCELED AND DISCHARGED IN THIS RPAPL 1501 ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled, pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 and the statute of limitations, to cancel and discharge a mortgage which defendant bank (Deutsche Bank) had accelerated more than six years before. Defendant bank argued that a letter sent by the original property owner, Aird (who had […]

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“NOTWITHSTANDING” CLAUSE IN THE ADDENDUM TO THE NOTE CONTROLS, THE ADDENDUM REQUIRED THAT THE MONTHLY PAYMENTS ON THE NOTE START BEFORE THE DATE DESCRIBED IN THE NOTE ITSELF (SECOND DEPT).

The Second Department determined the order and judgment of foreclosure was properly granted. The court explained that an addendum to the note, which included the phrase “notwithstanding anything to the contrary set forth in the Note,” controlled. Based on the language of the addendum, appellants were required to make monthly payments during the construction period. Appellants […]

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SUPREME COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF ITEMS ALLEGEDLY SOLD OR DAMAGED BY DEFENDANTS (OWNERS-OPERATORS OF A STORAGE UNIT) AS A SANCTION FOR PLAINTIFF’S ALLEGED SPOLIATION OF ITEMS IN THE STORAGE UNIT (SECOND DEPT).

In this Lien Law action, the Second Department determined Supreme Court improperly precluded the plaintiff from offering evidence of the value and condition of items allegedly sold or damaged by defendants, the owners/operators of a storage unit plaintiff had rented. Defendants allegedly mistakenly believed plaintiff had failed to pay the rental fees and held an auction. […]

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MOTION TO STRIKE SCHOOL’S ANSWER FOR SPOLIATION OF EVIDENCE PROPERLY DENIED, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, PLAINTIFF WAS INJURED BY ANOTHER STUDENT (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendant board of education's motion for summary judgment in this student-on-student assault case. In addition, Supreme Court properly denied plaintiff's motion to strike the answer based upon spoliation of evidence (a video): The complaint alleges that L.F., an infant, sustained injuries when he was picked up and […]

NO ONE WITNESSED FOUR-YEAR-OLD’S INJURY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT).

The Second Department determined defendant property-owner's motion for summary judgment in the inflatable-slide injury case was properly granted: The plaintiff's daughter allegedly was injured as she slid down an inflatable slide at a facility owned and operated by the defendant Live, Play and Bounce Corp. (hereinafter the defendant). Although both of her parents were present […]

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EMAILS SUBMITTED WITH REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined emails submitted in reply papers should not have been considered: The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought … . There are […]

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ALTHOUGH DEFENDANT CORPORATION WAS NOT PERSONALLY SERVED WITH THE SUMMONS AND COMPLAINT, SUPREME COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT, DEFENDANT DID NOT ADEQUATELY EXPLAIN ITS CLAIM THAT NOTICE BY MAIL WAS NOT RECEIVED (SECOND DEPT).

The Second Department determined Supreme Court did not abuse its discretion in refusal to vacate a default judgment. Although the corporate defendant (Greenville) was not served personally, it failed to explain why it did not receive the summons and complaint: CPLR 317 permits a defendant who has been served with a summons other than by […]

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