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Entries by Bruce Freeman

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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who […]

PLAINTIFF’S SUBMISSIONS, INCLUDING CERTIFIED CLIMATOLOGICAL DATA AND THE DEPOSITION OF A NONPARTY, RAISED QUESTIONS OF FACT ABOUT THE PRESENCE OF ICE AND THE DEFENDANTS’ NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although defendants made out a prima facie case that they did not create or have notice of the icy condition where plaintiff fell, the plaintiff, with submissions which included certified climatological data and the deposition of the nonparty witness, raised questions of fact about the weather conditions, the presence […]

HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the difference in elevation which caused plaintiff to fall was not inherently dangerous and was readily observable: … [T]he plaintiff, while walking on a walkway after parking his car at a lot located on the Citi Field complex in Queens, allegedly was injured within the defendants’ exterior grounds when he fell […]

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EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY’S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cell phone tower lease with a municipality did not expire. An extension of the lease was ratified by the municipality when it continued to accept lease payments after the expiration of the first five-year term: … [I]n seeking a declaration that the lease expired … , the […]

INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT).

The Second Department determined the insurer (petitioner) was entitled to a framed issue hearing in this traffic accident case. The appellant was involved in a multi-vehicle accident but claimed he was cut off by a vehicle which left the scene. After a framed issue hearing was held to determine whether a hit-and-run vehicle was involved, appellant […]

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Nimkoff) was entitled to a hearing on whether plaintiff bank (Hudson City Savings Bank) made a good faith effort to resolve the foreclosure action pursuant to CPLR 3408 (f): … Nimkoff submitted … his own affidavit in which he averred that the plaintiff refused to negotiate with him […]

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ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Jackson’s) motion to toll the accrual of interest during the four years between the filing of the first foreclosure action, which was erroneously dismissed, and the second foreclosure action should have been granted. The court further found that defendant’s motion to amend the answer to assert the […]

GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father’s death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents): When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make […]

SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed: Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with […]

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