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Entries by Bruce Freeman

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed a foreclosure complaint based upon an alleged failure of a condition precedent, and the judge should not have addressed the issue of standing, which was not a jurisdictional issue and was not, and could not be, raised by defendant, who […]

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DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined Supreme Court properly considered an expert's affidavit as part of defendants' timely motion for summary judgment, and properly determined the defect which allegedly caused plaintiff's fall was trivial as a matter of law: “[A] party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note […]

PLAINTIFF INJURED WHEN CHAIR IN CUSTODIAN’S BREAK ROOM COLLAPSED, SCHOOL DEMONSTRATED IT DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION AND RES IPSA LOQUITUR DID NOT APPLY BECAUSE THE CHAIR WAS DEEMED NOT TO BE IN THE EXCLUSIVE CONTROL OF THE SCHOOL DISTRICT (SECOND DEPT).

The Second Department determined the school district was not liable for injuries to a subcontractor working at a school. A chair in the custodian's break room collapsed when plaintiff was sitting in it. The school demonstrated a lack of notice of the dangerous condition and the res ipsa loquitur doctrine did not apply because the […]

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PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the legal malpractice action should have been dismissed because plaintiff could not have prevailed in the underlying slip and fall case. The slip and fall case was dismissed because the proper party was not served. The Second Department held that the plaintiff could not have proved liability […]

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ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE CONTEXT DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the causes of action alleging legal malpractice, breach of contract, and fraud were properly dismissed. The court further found that the cause of action alleging a violation of Judiciary Law 487 should have been dismissed as well, noting that allegations of negligence do not meet the “intent to deceive” element of […]

ASSIGNMENT OF AN INTEREST IN A JUDGMENT WAS VALID EVEN THOUGH THE PARTY WHO PAID THE ASSIGNOR HAD NOT BEEN NOTIFIED OF THE ASSIGNMENT, PAYMENT MADE IN GOOD FAITH TO THE ASSIGNOR TREATED AS IF MADE TO THE ASSIGNEE (SECOND DEPT).

The Second Department, reversing Supreme Court, held that a payment made in good faith to a party (Bynum) who had already assigned his interest in a judgment should be treated as if payment had been made to the right party (the assignee), and the assignment was valid, even though the party who made the payment (Scheiner) […]

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POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER’S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT

The Second Department determined the petition to file a late notice of claim in this false arrest, false imprisonment and malicious prosecution action was properly denied. The police report association with petitioner's arrest did not provide notice of the claims to the city and that allegation that petitioner's assigned counsel did not timely inform him […]

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LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this student bullying and harassment case was properly granted. The plaintiff alleged the school was negligent in failing to prevent or stop the bullying: … [T]he infant petitioner submitted evidence showing that she made persistent complaints over a period […]

OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs' serving a faulty copy of an order to show cause which did not include the return date should not have been deemed a jurisdictional defect. The defendants appeared on the return date, so there was no prejudice: Unbeknownst to the plaintiffs, the Kings County Clerk's Office […]

FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT).

The Second Department noted that plaintiff's failure to attach the pleadings to plaintiff's motion for summary judgment was not a fatal defect: The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion […]

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