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Entries by Bruce Freeman

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HERE AN ATTORNEY AND A CONTRACTOR WERE BUSINESS PARTNERS FOR YEARS AND RELIED ON EACH OTHER’S UNIQUE EXPERTISE; THERE WAS A QUESTION OF FACT WHETHER THE ATTORNEY BREACHED A FIDUCIARY DUTY BY TRANSFORMING THE PARTNERSHIP TO AN LLC WITHOUT INFORMING HIS FORMER PARTNER HE COULD NOT UNILATERALLY WITHDRAW FROM THE LLC; HERE THE CRITERIA FOR A STATUTORY DISSOLUTION OF THE LLC WERE MET (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant attorney, Mazza, breached his fiduciary duty owned to plaintiff when forming a Limited Liability Company (LLC), and further determined that the cause of action seeking a statutory dissolution of the LLC should have been granted. Defendant Mazza and plaintiff were […]

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PETITIONER ADEQUATELY DESCRIBED THE RECORDS SOUGHT FROM THE POLICE DEPARTMENT AND THE DEPARTMENT DID NOT MAKE ANY EFFORT TO ASSIST PETITIONER IN IDENTIFYING THE RECORDS AS REQUIRED BY THE REGULATIONS; DENIAL OF THE PETITION REVERSED AND MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing the denial of the petition to compel the disclosure of Nassau County Police Department records and remitting the matter, noted that the applicable regulations require the Department to assist the petitioner in identifying the records sought: … [P]etitioner made a request pursuant to the Freedom of Information Law … for certain […]

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ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​

The Second Department, modifying Family Court, determined Family Court should not have prohibited father from filing any further custody modification petitions because father had not filed frivolous petitions or filed petitions out of ill will or spite: Family Court improvidently exercised its discretion in prohibiting the father from filing any further modification petitions without the […]

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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification: Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the […]

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PRIVATE CONTRACT DISPUTES, UNIQUE TO THE PARTIES, ARE NOT COVERED BY GENERAL BUSINESS LAW 349 OR 35O WHICH ARE APPLICABLE ONLY TO CONSUMER-ORIENTED CONDUCT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that a General Business Law section 349 or 350 action must be based upon consumer-oriented conduct, not, as here, on a unique contract between private parties: “To successfully assert a claim under General Business Law § 349 or § 350, a party must allege that its adversary […]

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide: … [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing […]

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THE JUDGE DID NOT PROVIDE AN ADEQUATE STATEMENT OF THE REASONS FOR CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the judge failed to provide an adequate statement of the reasons for conduction the trial in defendant’s absence: … [T]he defendant is entitled to a new trial because the County Court improperly conducted the trial in the defendant’s absence. “Before proceeding in [a] […]

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COUNSELING OR TREATMENT SHOULD NOT BE MADE A CONDITION FOR ANY FUTURE MODIFICATION OF PARENTAL ACCESS; HOWEVER COUNSELING AND TREATMENT MAY BE MADE A COMPONENT OF CURRENT PARENTAL ACCESS (SECOND DEPT).

The Second Department, modifying Family Court, determined the court should not have made counseling or treatment a condition for any future modification of parental access, but Family Court appropriately directed mother to submit to treatment as a component of her current parental access: … [A] “court deciding a custody proceeding may properly direct a party […]

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THE CONTRACTOR THAT HIRED THE SUBCONTRACTOR FOR WHICH THE INJURED PLAINTIFF WORKED WAS THE CONDOMINIUM DEFENDANTS’ STATUTORY AGENT AND THEREFORE CAN BE HELD LIABLE IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant Chelsea, the contractor that hired the subcontractor, Prince, for which the injured plaintiff worked, was the statutory agent of the condominium defendants in this Labor Law 240(1) case. Therefore the action against Chelsea should not have been dismissed: Supreme Court improperly dismissed Chelsea from this action […]

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THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner: Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic […]

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