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Entries by Bruce Freeman

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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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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT).

The First Department determined defense counsel was not ineffective for turning down the court’s offer to instruct the jury that it need not adhere to the “acquit-first” rule. The jury had sent out two notes indicating deadlock on the top count (murder): Defendant also argues that counsel was ineffective for failing to accept the court’s […]

QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ (Schwengbers’) motion for summary judgment in this prescriptive easement case should not have been granted. The action concerned a shared driveway and a question of fact was raised whether plaintiffs’ use of the driveway was “hostile:” “A party claiming a prescriptive easement must show . . . […]

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FACT THAT PLAINTIFF COULD NOT IDENTIFY THE PARTICULAR MACY’S STORE AT WHICH THE SKIRT WHICH CAUGHT FIRE WAS PURCHASED DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF MACY’S, POINTING TO GAPS IN PLAINTIFF’S PROOF IS NOT SUFFICIENT FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the Macy’s defendants did not eliminate all triable issues of fact concerning whether Macy’s sold the plaintiff’s skirt which caught fire from a heater. Although plaintiff could not identify the store where the skirt was purchased, Macy’s could not rely on the gaps in plaintiff’s proof as […]

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ALTHOUGH THE BILL OF PARTICULARS MENTIONED NEGLIGENT HIRING AND RETENTION IN THIS BUS-PASSENGER-INJURY CASE, THE COMPLAINT DID NOT, THEREFORE THERE WERE NO GROUNDS FOR THE DEMAND TO DISCOVER REPORTS OF PREVIOUS ACCIDENTS INVOLVING THE BUS DRIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff was not entitled to discover the reports of other accidents involving defendant bus driver. Plaintiff’s children were injured after getting off the bus. Both the driver (Morin) and his employer (CDTA) were sued. Although the bill of particulars mentioned negligent hiring and retention, the complaint did […]

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CITY OF NEW YORK PROGRAM TO MOVE HOMELESS INTO APARTMENTS VIOLATES THE URSTADT LAW BY IMPOSING RENT CONTROLS ON BUILDINGS NOT PREVIOUSLY SUBJECT TO CONTROL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Sweeney, determined the City of New York’s Living in Communities (LINC) Program, designed to move homeless persons into apartments, violated the Urstadt Law, which prohibits the expansion (by a city) of rent controls to buildings beyond those subject to controls at the time […]

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TOWN’S SITE PLAN REVIEW LAW IS CONSISTENT WITH THE TOWN’S COMPREHENSIVE PLAN AND IS A VALID SUBSTITUTE FOR ZONING ORDINANCES, TOWN PLANNING BOARD HAD THE AUTHORITY TO IMPOSE CONDITIONS ON THE STORAGE OF FIREWOOD UNDER THE SITE PLAN REVIEW LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the town’s Site Plan Review Law was a valid substitute for zoning ordinances and explained the difference. The court also explained the meaning of a “comprehensive plan” in this context. In the underlying action the petitioners contested certain conditions placed upon the storage and sale of firewood […]

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RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT).

The Third Department, reversing County Court (which had affirmed Town Court), determined that the tenant-respondent’s defenses in this eviction proceeding should have been considered: “When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, ‘[t]he tenant continues in possession of any portion of the premises […]

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PLAINTIFF DID NOT PROVE AT TRIAL THAT HE HAD STANDING TO BRING THE FORECLOSURE ACTION, HE DID NOT PROVE PHYSICAL POSSESSION OF THE ORIGINAL NOTE AT THE TIME THE ACTION WAS BROUGHT AND DID NOT PROVE THE NOTE WAS INDORSED IN BLANK OR TO HIM, APPELLATE COURT CAN INDEPENDENTLY WEIGH THE EVIDENCE AFTER A NONJURY TRIAL (THIRD DEPT).

The Third Department, reversing County Court after a trial, determined plaintiff did not prove he had standing to bring the foreclosure action: … [T]he complaint should have been dismissed for lack of standing. Because defendant raised the issue of standing as an affirmative defense in his answer, plaintiff had to prove his standing to maintain […]

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