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Entries by Bruce Freeman

ALTHOUGH DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY TURNING LEFT INTO PLAINTIFF’S PATH, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER PLAINTIFF WAS SPEEDING (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff made out a prima facie case by demonstrating defendant, Gavitt, made a left turn across the plaintiff’s path and plaintiff entered an intersection. However Gavitt raised a question of fact by alleging plaintiff was speeding: Here, the […]

PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER STAIRCASE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted because the plaintiff could not identify the cause of her staircase fall. The allegation that the staircase lacked a handrail in violation of the building code did not raise a question of fact: In support of its […]

DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THE CRACK OVER WHICH PLAINTIFF TRIPPED WAS TRIVIAL, THEREFORE THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE A QUESTION OF FACT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant did not meet its prima facie burden to demonstrate the crack in a concrete floor was trivial in this slip and fall case. Therefore the burden never shifted to plaintiff to raise a question of fact. Defendant’s motion for summary judgment was properly denied: Generally, the issue of whether a […]

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EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT).

The Second Department determined plaintiff bank’s (OneWest’s) motion for summary judgment should have been denied because standing was not demonstrated with evidence meeting the business records hearsay exception requirements. The Second Department criticized Supreme Court for doing its own Internet research and making a sua sponte finding that OneWest had standing: In support of its […]

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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY FOR TWO DISTINCT REASONS, THE 2007 COMPLAINT WAS DISMISSED FOR LACK OF STANDING AND THEREFORE DID NOT SERVE TO ACCELERATE THE DEBT, THE SECOND ACTION, BROUGHT BY A SUCCESSOR IN INTEREST, WAS STARTED WITHIN SIX MONTHS OF THE DISMISSAL OF THE INITIAL ACTION AND WAS THEREFORE TIMELY UNDER CPLR 205 [a] (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to dismiss the foreclosure complaint as time-barred should have been denied. The first foreclosure action was started in 2007. The defendant’s default did not automatically accelerate the debt because the language in the note and mortgage made acceleration optional. Although the 2007 […]

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FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW FATHER TO REPRESENT HIMSELF IN THIS CUSTODY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s desire to represent himself in this custody proceeding should have been honored by the court. Family Court had ordered that father be allowed only supervised visitation until he retained counsel: The father had a statutory right to counsel in these Family Court proceedings… . However, he also […]

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THE AUTOMATIC ORDERS WHICH PRECLUDE TRANSFER OF MARITAL PROPERTY WHILE DIVORCE PROCEEDINGS ARE PENDING CANNOT BE USED AS THE BASIS FOR CIVIL CONTEMPT AFTER THE JUDGMENT OF DIVORCE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Duffy, determined the automatic orders which preclude the transfer of marital property (“the Property”) when a divorce proceeding is pending cannot be the basis of a contempt order after the judgment of divorce. Here the wife learned the husband had sold a marital […]

LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT).

The Second Department, reversing Family Court, determined the legal guardian’s petition to adopt the child should not have been denied solely based upon petitioner’s criminal history. The criminal history was 20 years old and petitioner had been the child’s legal guardian for five years: A court must determine whether a proposed adoption is in the […]

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PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (ESPINAL FACTORS) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s negligence action against a security company (US Security) hired by Kmart did not state a cause of action for tort liability stemming from a contract (Espinal criteria). Plaintiff was injured in a fight with a Kmart employee in a Kmart store. The First Department held that […]

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PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER (UNDER LABOR LAW 240 (1)) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim based upon a fall from a ladder. The court noted that the property owner was liable even if the property owner was unaware the plaintiff had been hired by a tenant (here a deli, also […]

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