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Entries by Bruce Freeman

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IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

The Second department, reversing (modifying) Supreme Court in a divorce action, determined that the judge properly corrected a mistake in the judgment of divorce, but improperly made a change in the judgment based on new evidence: … [T]he Supreme Court, sua sponte, directed the parties to appear … . … [T]he defendant and his counsel […]

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AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the award of attorney’s fees and expert witness fees in this divorce action was an abuse of discretion: In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court … . However, court rules impose certain requirements upon […]

DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined, despite the termination of mother’s parental rights, grandmother had standing to seek visitation with the child and visitation by the grandmother was in the bests interests of the child: A biological grandparent may seek visitation with a child even after parental rights have been terminated or the […]

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant demonstrated his attorney never informed him the plea included an aggravated felony which made deportation mandatory: A defendant has the right to the effective assistance of counsel before deciding whether to […]

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ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted the argument plaintiff did not allege in the bill of particulars that defendant hospital was vicariously liable for the actions of a physician (Devlin) was raised for the first time in reply papers and, therefore, should not have been considered by the motion court. The Second Department went […]

LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined law office failure was not a sufficient excuse for plaintiff’s failure to enter a default judgment in an action which alleged defendants failed to pay plaintiff the statutory minimum wage: “CPLR 3215(c) provides that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, […]

ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERLY REJECTED (SECOND DEPT).

The Second Department noted that arguments first raised in reply papers were properly rejected: After the plaintiff commenced this action, inter alia, to recover damages for malicious prosecution, the defendants moved to dismiss the complaint … . … [T]he Supreme Court granted the defendants’ unopposed motion to dismiss the complaint … . More than eight […]

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DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys failed to demonstrate plaintiffs suffered no damages in this legal malpractice action. Plaintiffs alleged defendants delayed in evicting plaintiffs’ tenants resulting in $500,000 in lost rent. Defendants, in their motion for summary judgment, alleged only that plaintiffs’ damages were speculative, which merely pointed to gaps […]

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