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Entries by Bruce Freeman

A PLAINTIFF FACED WITH A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION NEED NOT SUBMIT ANY EVIDENCE OR AFFIDAVITS IN OPPOSITION BUT RATHER CAN STAND ON THE SUFFICIENCY OF THE COMPLAINT (SECOND DEPT).

The Second Department noted that a plaintiff, when faced with a motion to dismiss for failure to state a cause of action, need not submit any evidence or affidavits in opposition, but may simply stand on the pleadings: While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion […]

DECLARATORY JUDGMENT DECIDED BY DEFAULT CANNOT SUPPORT THE APPLICATION OF THE DOCTRINE OF COLLATERAL ESTOPPEL, THE ISSUES HAVE NOT BEEN LITIGATED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that a declaratory judgment decided on default does not support the application of the doctrine of collateral estoppel because the issues were not litigated: “The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application […]

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THE EXPENSE OF DEFENDING AN ACTION WHICH STEMMED FROM AN ATTORNEY’S MISREPRESENTATION CAN MEET THE INJURY REQUIREMENT OF A JUDICIARY LAW 487 ACTION (FIRST DEPT).

The Second Department determined the expense required to defend an action that resulted from an attorney’s misrepresentation can meet the injury requirement of a Judiciary Law 487 cause of action: Judiciary Law § 487 imposes civil and criminal liability on any attorney who “(1) [i]s guilty of any deceit or collusion, or consents to any deceit […]

MOTION, MADE BY PLAINTIFF’S NEW COUNSEL, TO VACATE A STIPULATION ENTERED INTO BY PRIOR COUNSEL SHOULD NOT HAVE BEEN GRANTED, PRIOR COUNSEL HAD THE APPARENT AUTHORITY TO ENTER THE STIPULATION AND PLAINTIFF CAN NOT LATER ARGUE PRIOR COUNSEL LACKED AUTHORITY (SECOND DEPT).

The Second Department determined Supreme Court should not have vacated a stipulated entered into in open court and signed by an attorney who had represented the plaintiff and had the apparent authority to enter the stipulation. The motion to vacate was made by new counsel hired by plaintiff: The stipulation, signed by counsel for each […]

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FIREFIGHTER’S DEATH DURING A TRAINING EXERCISE NOT ACTIONABLE UNDER GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a (FIRST DEPT).

The First Department determined plaintiff probationary firefighter’s death from dehydration during fire department training (functional skills training or FST) was not the type of occupational injury which is actionable under General Municipal Law 205-a and Labor Law 27-a: Decedent … , a probationary firefighter, passed away due to dehydration while performing the Fire Academy’s physically […]

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FORUM SELECTION CLAUSE APPLIES TO NONSIGNATORY ATTORNEY BASED UPON ATTORNEY’S RELATIONSHIP WITH THE PARTIES, PARTIES’ FAILURE TO CAREFULLY READ THE AGREEMENTS BLAMED ON ATTORNEY’S FRAUDULENT ASSURANCES, FRAUD, FRAUD IN THE INDUCEMENT, BREACH OF FIDUCIARY DUTY AND BREACH OF CONTRACT ALLEGATIONS AGAINST ATTORNEY STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined the defendants’ counterclaims against their attorney, David, stated causes of action for fraud, fraud in the inducement, breach of fiduciary duty and breach of contract. Defendants alleged that David’s assurances led defendants to sign joint venture agreements to their detriment without carefully reading them. The court noted that, although David was […]

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FAILURE TO CITE STATUTORY BASIS FOR MOTION TO VACATE DEFAULT IN NOTICE OF MOTION NOT FATAL, QUESTION WHETHER DEFENDANT WAS SERVED IN THIS FORECLOSURE ACTION REQUIRED A TRAVERSE HEARING, BECAUSE DEFENDANT DID NOT RESIDE AT THE SUBJECT PROPERTY CPLR 3215(g)(3) NOTICE NOT REQUIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the failure to cite the CPLR provision upon which the cross motion to vacate the default was based was not fatal to the motion because the basis was clear from the motion papers, (2) there was a question of fact whether defendant was served with the foreclosure […]

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MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a ruling from the support magistrate on whether incarceration was recommended based on father’s willful violation of a child support order. Rather than making the recommendation, the support magistrate postponed the ruling and husband continued to violate the order for several months while the […]

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ARBITRATOR’S DETERMINATION THAT THE ACKNOWLEDGED SEXUAL HARASSMENT DID NOT RISE TO THE LEVEL OF A DISCHARGEABLE OFFENSE VIOLATED PUBLIC POLICY AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the arbitrator’s ruling in this sexual harassment action violated public policy and was irrational. The arbitrator agreed with the findings of fact made by the Equal Employment Opportunity (EEO) investigation (which supported the sexual harassment allegations made by Melendez against Aiken) but […]

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FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR LAW CAUSES OF ACTION INSUFFICIENTLY PLED, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fraudulent conveyance allegations, which were made “upon information and belief,” were insufficient, and the tortious interference with contract allegations were insufficient because there was no allegation the contract would not have been breached but for the defendant’s conduct: Plaintiff alleges that defendants engaged in a fraudulent scheme to […]

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