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Entries by Bruce Freeman

Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively

In a full-fledged opinion by Justice Dickerson, the Second Department determined the plaintiffs could not recommence a lawsuit which was dismissed pursuant to 22 NYCRR 202.27 when the plaintiffs failed to show up at a conference with the judge. CPLR 205 precludes the recommencement of a lawsuit dismissed for neglect to prosecute. In 2008 CPLR […]

French Court Never Had Personal Jurisdiction Over New York Defendant/Service Not Accomplished In Accordance with Hague Convention

The Second Department determined a foreign (French) judgment could not be enforced in New York because the plaintiff did not demonstrate the French court had personal jurisdiction over the defendant.  The defendant was not served in the French action in accordance with the Hague convention: …[A] foreign country judgment is not conclusive, and thus may […]

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Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days […]

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Administrative Decision Maker, Who Had Previously Ruled Against Petitioner/Employee in Disciplinary Proceedings, Should Have Been Disqualified from Reviewing Hearing Officer’s Recommendations Made in a Related Subsequent Proceeding

The Third Department, over a partial dissent, determined the mayor (Bertoni), who ruled against the petitioner/employee on disciplinary charges, should have been disqualified from reviewing the hearing officer’s recommendations made in a subsequent PERB hearing.  After noting petitioner could properly be punished for testifying falsely in the hearings, the Third Department explained: Reversal is required […]

Untimely Summary Judgment Motion Denied—No Showing of Good Cause for the Delay/Motion Was Mislabeled as a Cross Motion

In a full-fledged opinion by Justice Feinman, over a dissent, the First Department determined an untimely motion for summary judgment was properly denied because there was no explanation for the delay.  The court noted the motion was mislabeled as a cross-motion because it did not address the issues raised in the original motion, but rather […]

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The […]

Attorney Penalized for Making a Baseless Request for a Change of Venue

The Third Department upheld the Board’s determination that counsel should be penalized for making a baseless request for a change of venue (closer to the attorney’s office): Workers’ Compensation Law § 114-a (3) (ii) provides that “[i]f the [B]oard . . . determines that the proceedings in respect of [a claim for compensation], including any […]

It May Be an Abuse of Discretion for the Board to Refuse to Review an Untimely Application Raising a Jurisdictional Issue/Board May Be Barred from Reopening a Closed Claim More than Seven Years After the Accident

The Third Department determined the Workers’ Compensation Board should have considered the employer’s untimely application for review because the employer raised a jurisdictional issue. The court noted that the Board may barred from reopening closed claims after more than seven years have elapsed since the accident: “The general rule is that lack of jurisdiction to […]

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No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount

The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount: The gravamen […]

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Police Officer’s Actions In a Private Dispute Could Not Be Invoked Against Municipality Under Doctrine of Respondeat Superior

The Third Department determined that the doctrine of respondeat superior could not be invoked against a municipality for the actions of an off-duty police officer, even where the officer characterized his actions as an arrest.  Here the police officer injured the plaintiff in a private dispute that had nothing to do with the officer’s official […]

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