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Entries by Bruce Freeman

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USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court did not have the power to find provisions of loan agreements usurious. Defendant defaulted in the action to enforce the loan agreements. Usury is an affirmative defense which is waived if not raised by a defendant: Pursuant to CPLR 3215, a plaintiff may seek a default […]

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ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial court’s allowing Sandoval evidence of a prior robbery which was the subject of a pending appeal was error, and the error was not harmless under the facts: We … reverse the judgment of conviction because of an erroneous Sandoval ruling made by the Supreme Court … . At […]

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DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).

The Second Department determined defendant’s conviction for possession of a weapon violated the protection against double jeopardy. Defendant had pled guilty to possession of the same weapon in a different county. However, proof the conviction was admissible in the trial under Molineux criteria: Prior to the defendant’s trial in this case, the defendant pleaded guilty in Nassau […]

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DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT).

The Second Department, remitting the case for a new second violent felony offender determination and resentencing, held that the sentencing judge should have made a searching inquiry concerning defendant’s wish to proceed pro se. Defendant’s attorney was sick and defendant did not want to be represented by the attorney who appeared to represent him (Klein). […]

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CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an enforceable real estate purchase contract had been formed and plaintiff’s motion to conform the complaint to the proof at trial should have been granted. The court noted that the parties’ expectation that a more formal contract will be executed later is not really relevant: Although Berger [defendant’s […]

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FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s (Hurst’s) motion to amend her answer and her motion to dismiss on judicial estoppel grounds were properly granted. Plaintiff had failed to list a cause of action against defendant in her bankruptcy proceeding. Judicial estoppel therefore precluded plaintiff’s action against defendant: In the absence of prejudice or surprise to the […]

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BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, ,determined plaintiff (Fox) was not entitled to the protections of rent stabilization because the lease was in the name of a corporate entitled formed by the plaintiff and plaintiff was not named in the lease: In 2008, at Fox’s suggestion, a renewal lease was entered into […]

USE OF A MAKESHIFT LADDER WHEN AN A-FRAME WAS AVAILABLE OR DESCENDING THE LADDER BACKWARDS WITH SHOES UNTIED DID NOT CONSTITUTE THE SOLE PROXIMATE CAUSE OF THE FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Use of a makeshift ladder when an A-frame ladder was available, the fact that plaintiff descended the ladder backwards, and the fact that plaintiff’s boots may have been untied did not constitute the sole […]

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YOUTHFUL OFFENDER RECORDS PROPERLY CONSIDERED BY THE BOARD AND THE SORA COURT (FIRST DEPT).

The First Department noted that in a risk assessment procedure pursuant to the Sex Offender Registration Act (SORA) the State Board of Examiners (and, therefore, the court) may consider youthful-offender-related documents: New York’s Sex Offender Registration Act (SORA) requires the State Board of Examiners of Sex Offenders to assess an offender’s risk of reoffense. In […]

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IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, reversing the appellate division (and potentially affecting hundreds of recent rulings on summary judgment motions in negligence cases), determined that a plaintiff need not demonstrate the absence of comparative fault to be entitled to partial summary judgment on liability. […]

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