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Entries by Bruce Freeman

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ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined it could not reach a constitutional issue, regarding whether the authority to prosecute the defendant had been properly delegated to the Special Prosecutor for the Justice Center for the Protection of People with Special Needs, because it was not raised below. The dissent argued the court could exercise […]

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT).

The First Department determined defense counsel took a position adverse to her client’s on the client’s pro se written motion to withdraw his plea. Therefore the matter was remitted for further proceedings on the motion with new counsel: Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting that his […]

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ALTHOUGH THE DEFENDANT DIRECTORS ON THE BOARD OF GEROVA DID NOT RESIDE OR DO BUSINESS IN NEW YORK, OTHER GEROVA DEFENDANTS PARTICIPATED IN THE FRAUDULENT SCHEME IN NEW YORK, THEREBY PROVIDING A SUFFICIENT BASIS FOR LONG-ARM JURISDICTION (FIRST DEPT).

The First Department, in a memorandum decision that does not lay out the facts, determined that, although the defendant directors on the board of Gerova did not reside or do business in New York, other Gerova defendants participated in the fraudulent scheme in New York thereby providing a sufficient basis for long-arm jurisdiction (the decision doesn’t […]

PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to the costs of serving the defendant by alternate means after defendant failed to return the acknowledgment of receipt (of service by mail) was not returned within 30 days: Plaintiff commenced this negligence action by serving defendants by mail pursuant to CPLR 312-a (a) and […]

PARTIES HAD CONSENTED TO PROCEDURES WHICH DEVIATED FROM THE CPLR, SUMMARY JUDGMENT MOTIONS, ALTHOUGH UNTIMELY UNDER THE CPLR, SHOULD HAVE BEEN DEEMED TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court, noted that the parties, through stipulations, had consented to procedures which deviated from the CPLR. Therefore the summary judgment motions, although untimely under the CPLR, should have been deemed timely: Prior court orders and stipulations between the parties show that the parties, with the court’s consent, charted a procedural […]

THE 20% VACANCY INCREASE SHOULD BE INCLUDED WHEN CALCULATING THE LEGAL REGULATED RENT TO DETERMINE WHETHER AN APARTMENT HAS REACHED THE $2000 THRESHOLD IN THE RENT STABILIZATION LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, determined “the 20% vacancy increase should be included when calculating the legal regulated rent for purposes of determining whether the subject apartment has reached the $2,000 deregulation threshold in the Rent Stabilization Law:” In November 2003, plaintiff Richard Altman entered […]

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ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed the SORA court’s use of allegations of sex offenses of which defendant was acquitted at trial in its risk assessment calculation: The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition […]

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A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP).

The Court of Appeals, affirming the Appellate Division, determined that the clause of a contract indicating construction of the contract was governed by New York law did not incorporate a specific statutory requirement, here a requirement of the Lien Law: Plaintiff’s complaint does not identify which, if any, provision or provisions of the [CM agreement] […]

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DEFENDANT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, THEREFORE WORKERS’ COMPENSATION WAS THE ONLY REMEDY FOR THE PLAINTIFF WHO WAS INJURED ON THE JOB (SECOND DEPT).

The Second Department determined that the defendant was the alter ego of plaintiff’s employer and therefore plaintiff’s only remedy for the on the job injury was under the Workers’ Compensation Law: Generally, employees injured in the course of their employment may recover against their employers only under the Workers’ Compensation Law … . Workers’ Compensation […]

PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff (Heidi) had recorded her deed and mortgage before defendant bank (M & T) recorded its mortgage (to secure a loan to a co-tenant). Therefore defendant bank had notice of plaintiff’s prior interests: “The New York Recording Act … , inter alia, protects a good faith purchaser for value […]

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