From This Week’s “Latest Posts” Section (Below):
The NYC Administrative Code Allows Seizure and Forfeiture of a Vehicle Used for Unlicensed Food Vending; But Is Forfeiture an “Excessive Fine?”
City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25
Does a Defamatory Linkedin Post Meet the Criteria for the “Strategic Lawsuit Against Public Participation (SLAPP)” Defense?
Stiloski v Wingate, 2025 NY Slip Op 04803, Second Dept 8-27-25
Do Statements in Bold Face at the Bottom of a RPAPL 1304 Notice of Foreclosure Violate the “Separate Envelope” Rule?
HSBC Bank USA, N.A. v Berry, 2025 NY Slip Op 04769, Second Dept 8-27-25
Does a Passenger in Another’s Vehicle Have Standing to Contest the Search of the Vehicle If the Statutory Presumption Does Not Apply?
People v Knight, 2025 NY Slip Op 04736, Second Deppt 8-20-25
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THERE ARE QUESTIONS OF FACT WHETHER THE FORFEITURE OF THE VEHICLE USED FOR FOOD VENDING WITHOUT A LICENSE IS “PUNITIVE” IN NATURE AND VIOLATES THE “EXCESSIVE FINES” CLAUSES OF THE NEW YORK STATE AND UNITED STATES CONSTITUTIONS; THE FINES IMPOSED FOR THE FOOD VENDING VIOLATION WERE $2600 AND THE VALUE OF THE VEHICLE IS $40,000 (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Gesmer, determined the forfeiture of Thomas Jones’ vehicle for food vending without a license violated the Excessive Fines clauses of both the State and Federal Constitutions. The vehicle was worth $40,000, and the fine imposed for vending without a license was $2600:
The City … commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones’ truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the “reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart.” Section 17—322(a) provides for forfeiture of “all property seized” from unlicensed food vendors “[i]n addition to any penalties imposed” pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.
The motion court denied the City’s motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions. We now affirm. City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25
Practice Point: Consult this opinion for an in-depth discussion of when forfeiture is deemed “punitive” in nature such that forfeiture violates the Excessive Fines clauses of the State and Federal Constitutions.
SUPREME COURT PROPERLY APPLIED THE “PIERCE THE CORPORATE VEIL CRITERIA” AND ASSESSED DAMAGES FOR BREACH OF CONTRACT AGAINST THE DEFENDANT PARENT CORPORATION; THERE WAS A COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Kapnick, over a comprehensive two-justice dissent, determined Supreme Court had properly applied the “pierce the corporate veil” criteria to assess damages for breach of contract against the defendant parent company:
“Because a decision to pierce the corporate veil in any given instance will necessarily depend on the attendant facts and equities, there are no definitive rules governing the varying circumstances when this power may be exercised” … . However, under the totality of the circumstances presented here, we conclude that plaintiffs met their heavy burden of showing that “[JAE] exercised complete domination of [J.A. Madison] in respect to the transaction attacked[,] [specifically the Consulting Agreement]” … . Thus, we will address the second prong of the test – namely, whether plaintiffs met their burden to show “that such domination was used to commit a fraud or wrong against the plaintiff[s] which resulted in plaintiff[s’] injury” … . * * *
“Wrongdoing in this context does not necessarily require allegations of actual fraud. While fraud certainly satisfies the wrongdoing requirement, other claims of inequity or malfeasance will also suffice … . Allegations that corporate funds were purposefully diverted to make it judgment proof or that a corporation was dissolved without making appropriate reserves for contingent liabilities are sufficient to satisfy the pleading requirement of wrongdoing which is necessary to pierce the corporate veil on an alter-ego theory … .
… The evidence presented at trial showed that JAE used its domination of J.A. Madison to commit a wrong against plaintiffs by stopping payments to plaintiffs under the Consulting Agreement, causing J.A. Madison to become judgment proof, and then by dissolving J.A. Madison after this action had already been commenced, making plaintiffs’ judgment against J.A. Madison nothing more than a pyrrhic victory. The fact that J.A. Madison may have initially been created for a legitimate purpose of operating a store selling Jonathan Adler merchandise and products does not change the analysis. Rich v J.A. Madison, LLC, 2025 NY Slip Op 04818, First Dept 8-28-25
Practice Point: Consult this opinion and the dissent for a comprehensive discussion of the criteria for piercing the corporate veil in the context of a breach of contract.
THE CONSENT-SEARCH PROBATION CONDITION WAS NOT WARRANTED IN THIS DWI CASE; THERE WAS A COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).
The First Department, reversing Supreme Court, over a comprehensive two-justice dissent, determined the probation condition requiring defendant to consent to a search of his person or home was not warranted in this DWI case. Defendant was found asleep in his car, engine running, with a bottle of alcohol on the seat. He had twice before been convicted of DWI:
… [W]e hold that the consent-search condition imposed by the sentencing court is not reasonably related to defendant’s rehabilitation or necessary to ensure that he will lead a law-abiding life. Initially, it is undisputed that defendant was not armed with a weapon when he committed the crime of which he was convicted. Defendant also has no history of violence or use of weapons and has never been convicted of an offense involving weapons … . * * *
… [T]he circumstances of defendant’s past use of illegal substances do not support a finding that the imposition of the consent-search condition was reasonably necessary to ensure that defendant will lead a law-abiding life or to assist him to do so, particularly where the frequency and magnitude of his use of illegal substances are unknown … . * * *
There are certain limited circumstances where alcohol becomes contraband for the purposes of the consent-search condition, such as when it is open and located in a running vehicle … . However, the consent-search condition is not limited to conform to these specific circumstances. Rather, the condition broadly authorizes warrantless searches of defendant’s person, vehicle and place of abode. This extensive reach into areas of defendant’s life where he may legally possess and consume alcohol is not reasonably related to defendant’s rehabilitation or individually tailored in relation to the offense committed, especially considering that defendant will still be “checked up on” pursuant to the condition permitting unannounced visits from a probation officer at his residence or elsewhere, which he does not challenge … . People v Andrus, 2025 NY Slip Op 04817, First Dept 8-28-25
Practice Point: Consult this decision and dissent for insight into when a consent-search probation condition is warranted and when, as here, it is inappropriate.
THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) REPRESENTS A CHANGE IN THE LAW WHICH WILL SUPPORT A MOTION TO RENEW; HERE THE MOTION TO RENEW SHOULD HAVE BEEN GRANTED AND THE FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendant’s (G&Q Estates Corp.’s) motion to renew based upon new law, the Foreclosure Abuse Prevention Act (FAPA), should have been granted and the foreclosure action should have been dismissed as time-barred:
A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “Therefore, a motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law” … . * * *
… G & Q Estates correctly contends that FAPA constituted a change in the law that would alter the Supreme Court’s prior determination of those branches of its prior cross-motion which were to vacate its default in appearing or answering the amended complaint and to dismiss the amended complaint insofar as asserted against it as time-barred … . The commencement of the 2007 action accelerated the mortgage debt and caused the six-year statute of limitations period to accrue, the voluntary discontinuance of that action did not de-accelerate the debt in light of the statutory amendments enacted by FAPA, and the limitations period thus expired in September 2013 … . U.S. Bank N.A. v Mongru, 2025 NY Slip Op 04807, Second Dept 8-27-25
Practice Point: The Foreclosure Abuse Prevention Act (FAPA) represents and change in the law which supports a motion to renew.
CALCULATONS RELIED UPON BY THE REFEREE WERE BASED ON UNIDENTIFIED AND UNPRODUCED BUSINESS RECORDS RENDERING THE CALCULATIONS HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the referee’s report relied on calculations based on unidentified and unproduced business records, rendering the calculations hearsay. Therefore, the reports should not have been confirmed:
… [T]he referee’s findings with respect to the amount due to the plaintiff were based upon unidentified and unproduced business records … . Since the computations of the loan servicer’s employee as to the amounts due to the plaintiff were based on unidentified and unproduced business records, the employee’s assertions in those regards constituted inadmissible hearsay and lacked probative value … . TLOA Mtge., LLC v 109-08 N. Blvd, LLC, 2025 NY Slip Op 04804, Second Dept 8-27-25
Practice Point: Any calculations relied upon in a referee’s report, even if done by a third party, must be supported by attached business records. Without the records, the calculations are hearsay.
ALTHOUGH DEFENDANT DEMONSTRATED THE POST ON LINKEDIN MET THE CRITERIA FOR THE “STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION” (SLAPP) DEFENSE TO THE DEFAMATION ACTION, PLAINTIFFS DEMONSTRATED THE DEFAMATION ACTION HAS A “SUBSTANTIAL BASIS IN LAW;” THEREFORE THE ACTION SURVIVED THE MOTION TO DISMISS PURSUANT TO CIVIL RIGHTS LAW 76-A (SECOND DEPT).
The Second Department determined plaintiffs had stated causes of action for defamation requiring the denial of defendant’s motion to dismiss the action as a strategic lawsuit against public participation (SLAPP, Civil Rights Law section 76-a). Plaintiffs alleged defendant put up a post on Linkedin in which defendant held himself out as a “Nonprofit Leader and Consultant” and referred to a person readily identified as plaintiff Stiloski. The post stated that “[a] Tarrytown extremist who supports neo-Nazi causes and does a ton of business with the Village placed a massive sign on his place showing a graphic middle finger aimed at our Black community:”
… [T]he plaintiffs established that the causes of action alleging defamation and defamation per se had substantial bases in the law. The defendant’s statements in the LinkedIn post, under the circumstances and in the context made, did not constitute nonactionable pure opinion … . The defendant did not call Stiloski a “neo-Nazi,” which arguably can be pure opinion. Rather, the nuanced statements at issue in the LinkedIn post, namely that Stiloski was a “Tarrytown extremist who supports neo-Nazi causes”… , can “readily be proven true or false” and, under these circumstances, in which the defendant held himself out to be a “Nonprofit Leader and Consultant” and the amended complaint alleged that the defendant is a well-known community activist, “signaled to the average reader or listener that the defendant was conveying facts about the plaintiff” … . Alternatively, the statements in the LinkedIn post are those of mixed opinion and, therefore, actionable, as “a reasonable reader would have inferred that the poster had knowledge of facts, unknown to the audience, supporting the assertions made” … . The plaintiffs further sufficiently alleged in the amended complaint that the statements made in the LinkedIn post were detrimental to them. Specifically, the amended complaint alleged that in July 2022, a potential customer refused the plaintiffs’ services and called Stiloski a “racist” and a “white supremacist.” Additionally, the plaintiffs alleged that the automotive business suffered as a result of the defendant’s actions, notably that a local church ceased doing business with the plaintiffs, among [*4]other things … . The plaintiffs further alleged that the defendant’s “actions were taken with malice based on extreme animus and hatred,” and that his conduct was “knowingly malicious, willful and wanton and/or showed reckless disregard” for the plaintiffs’ rights … . Thus, the plaintiffs demonstrated that the causes of action alleging defamation and defamation per se, as well as the other causes of action that were predicated upon the alleged defamatory communication at issue, under these circumstances, had a substantial basis in law … . Stiloski v Wingate, 2025 NY Slip Op 04803, Second Dept 8-27-25
Practice Point: A post on Linkedin meets the criteria for a SLAPP defense to a defamation action. Here however plaintiff demonstrated the defamation action had a “substantial basis in law.” The action therefore survived the motion to dismiss under the SLAPP statute (Civil Rights Law 76-a).
HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).
The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:
The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … . “Necessary parties are defined as ‘[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'” … . “The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” …. “Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort” …. Therefore, “[w]hen a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned” … .
Supreme Court improperly rejected the respondents’ contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board’s resolution … as appointed Tucci to his position [with the Village Fire Department], and the court granted that request. Since Tucci was a person “who might be”—and in fact was—”inequitably affected by a judgment” in this proceeding (CPLR 1001[a]), he was a necessary party … . Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party … .
… [D]ismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens … . Instead, “[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)” … . Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd., 2025 NY Slip Op 04793, Second Dept 8-27-25
Practice Point: Consult this decision for a definition of “necessary parties” within the meaning of CPLR 1001(b) and an explanation of the proper procedure for dealing with the failure to join a necessary party.
STATEMENTS IN BOLD LETTERS ON THE BOTTOM OF EACH PAGE OF THE RPAPL 1304 NOTICE OF FORECLOSURE, AS WELL AS A CONSUMER NOTICE PURSUANT TO 15 USC SECTION 1692G, DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined statements included with the RPAPL 1304 90-day notice-of-foreclosure did not violate the “separate envelope” rule:
“The ‘separate envelope’ mandate of RPAPL 1304(2) provides that ‘[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice'” … . Here, in support of her cross-motion, the defendant presented evidence that the 90-day notices included an additional statement, in bold letters, at the bottom of each page, indicating that the notice was “AN ATTEMPT TO COLLECT A DEBT” and that “ANY INFORMATION OBTAINED . . . WILL BE USED FOR THAT PURPOSE,” as well as a consumer notice pursuant to 15 USC § 1692g. However, the subject language does not constitute an “other mailing or notice” in violation of the separate envelope mandate of RPAPL 1304(2). The additional material consisted of “accurate statements that further the underlying statutory purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure” … . HSBC Bank USA, N.A. v Berry, 2025 NY Slip Op 04769, Second Dept 8-27-25
Practice Point: The separate envelope rule which requires that the RPAPL 1304 notice of foreclosure be sent “in a separate envelope from any other mailing or notice” was not violated here by statements in bold letters on the bottom of each page of the RPAPL 1304 notice or by the inclusion of a consumer notice pursuant to 15 USC section 1692g.
THE VIOLATIONS OF EXECUTIVE LAW 63 (12) BASED ON FALSE “STATEMENTS OF FINANCIAL CONDITION” (SFC’S) SUBMITTED TO OBTAIN LOANS FOR TRUMP ENTITIES WERE AFFIRMED ON APPEAL; HOWEVER THE RELATED “DISGORGEMENT” OF NEARLY HALF-A-BILLION DOLLARS WAS DEEMED AN EXCESSIVE FINE AND WAS VACATED (FIRST DEPT).
The First Department, in three decisions issued by a divided court with no majority, determined the defendants violated Executive Law section 63 (12) by submitting deceptive business records to banks, insurance companies, and the NYC Parks Department. The suit alleged, for example, President Donald Trump submitted false “statements of financial condition” (SFC”s) to banks to obtain better loans for Trump entities. Supreme Court had ordered “disgorgement” of nearly half-a-billion dollars. The First Department held the “disgorgement” was an improper, excessive “fine” and vacated it. The fraud-based violations of the Executive Law remain standing, however. All expect the case to go to the Court of Appeals:
Defendants appeal from two decisions (and the resulting judgment) holding that defendants violated Executive Law § 63(12) by repeatedly submitting deceptive business records to banks, insurance companies, and the New York City Parks Department.
Presiding Justice Renwick and I [Justice Moulton] find that Supreme Court correctly found defendants liable. We agree with Supreme Court that the Attorney General acted well within her lawful power in bringing this action, and that she vindicated a public interest in doing so. We also find that Supreme Court properly ruled only on claims that are timely under the applicable statute of limitations. However, we would modify the remedy ordered by Supreme Court. While the injunctive relief ordered by the court is well crafted to curb defendants’ business culture, the court’s disgorgement order, which directs that defendants pay nearly half a billion dollars to the State of New York, is an excessive fine that violates the Eighth Amendment of the United States Constitution.
This decision is one of three issued by this Court today. Presiding Justice Renwick and I agree with our colleagues on certain points. Most importantly, we agree with Justice Higgitt, who is joined by Justice Rosado, that the Attorney General is empowered by Executive Law § 63(12) to bring this action. However, our remaining disagreements with our colleagues’ decisions are profound. In sum, Justice Friedman finds that Supreme Court’s rulings are infirm in almost every respect and would hold that the Attorney General had no power to bring this case under Executive Law § 63(12). He would dismiss the complaint outright. Justice Higgitt, while agreeing that the Attorney General had the power to bring this lawsuit, finds that errors made by Supreme Court require a new trial limited to only some of the transactions in question. * * *
Because none of the three decisions garners a majority, Justices Higgitt and Rosado join the decretal of this decision for the sole purpose of ensuring finality, thereby affording the parties a path for appeal to the Court of Appeals. People v Trump, 2025 NY Slip Op 04756, First Dept 8-21-25
Practice Point: Here “disgorgement” of nearly a half billion dollars for fraud-related violations of the Executive Law (stemming from submission of false “statements of financial condition” to obtain loans for Trump entities) was deemed an excessive fine and was vacated by the First Department.
ALTHOUGH THE RPAPL 1304 NOTICE OF FORECLOSURE COMPLIED WITH THE STATUTE WHEN IT WAS SENT, IT DID NOT COMPLY WITH THE VERSION OF THE STATUTE IN EFFECT WHEN THE ACTION WAS COMMENCED; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that, although the RPAPL 1304 notice of foreclosure was sufficient at the time it was served, it did not meet the RPAPL 1304 notice requirements at the time the action was brought:
RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “‘Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action'” … . “Where an RPAPL 1304 notice fails to reflect information mandated by the statute, . . . the statute will not have been strictly complied with and the notice will not be valid” … .
Here, although the language in a 90-day notice sent … in November 2016 complied with the language set forth in RPAPL 1304 as it existed at the time the notice was mailed … , the plaintiff failed to establish, prima facie, that the notice complied with the language set forth in RPAPL 1304 as it existed at the time this action was commenced in December 2018 … . Since there was more than a two-year period between the time that the notice was sent and the time that the action was commenced, “[n]othing prevented the plaintiff from sending the defendant a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing this action” … . Accordingly, as the plaintiff failed to establish, prima facie, strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . Wilmington Sav. Fund Socy., FSB v Scarso, 2025 NY Slip Op 04745, Second Dept 8-20-25
Practice Point: RPAPL 1304 must be strictly complied with. Here the RPAP 1304 notice of foreclosure complied with the statute when it was sent, but not when the action was commenced. The bank’s summary judgment motion should have been denied.
A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action:
“CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action” … . “Since CPLR 3216 is a legislative creation and not part of a court’s inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint” … .
Here, the two 90-day notices served by the defendant and an order issued by the court were all defective in that they did not state that the plaintiff’s failure to comply with the demands contained therein would serve as a basis for a motion to dismiss the complaint for failure to prosecute … . Accordingly, the Supreme Court should have denied the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint. Terryn v Rubin, 2025 NY Slip Op 04741, Second Dept 8-20-25
Practice Point: A ninety-day demand which fails to state dismissal of the action will result from a failure to comply is defective and has no effect.
THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a weapon seized from a car in which defendant was a passenger should not have been granted. Defendant, who had no possessory interest in the car, did not have standing to contest the search of the car. The People did not rely on the statutory presumption that the occupants of a car possess contraband in the car. Rather, the People relied on the testimony of an officer who saw the defendant put an object under his seat. The barrel of the seized gun was in plain view:
A vehicle passenger with no ownership or possessory interest in the vehicle does not have a legitimate expectation of privacy in its interior … . As a result, a passenger in a car who is not charged with possession of a weapon or drugs under a statutory presumption (see Penal Law § 265.15[3] …) has no standing to challenge the search of the vehicle once it has been lawfully stopped … . Here, the People did not rely on the statutory presumption of possession but instead relied on the direct observations of a police detective. Specifically, the police detective testified at the suppression hearing that, during the initial stop of the vehicle in which the defendant was a passenger, the detective observed the defendant reach between his legs and place something under his seat. After the defendant had been removed from the vehicle, the detective looked through the windshield and saw, underneath the front passenger seat in the area where he had seen the defendant place something, the front of the barrel of a gun in plain view. Because the People relied on that testimony rather than any statutory presumption to establish possession of the gun, the defendant did not have standing to challenge the search of the vehicle in which he was a passenger and had no ownership interest … . Moreover, the defendant does not challenge the legality of the vehicular stop, which, in any event, was found by the court to have been lawful—a determination that may not be reviewed on this appeal (see CPL 470.15[1] …). Accordingly, the defendant failed to establish his standing to challenge the search of the vehicle and the seizure of the gun … . People v Knight, 2025 NY Slip Op 04736, Second Deppt 8-20-25
Practice Point: A passenger in a car who has no ownership or possessory interest in the car does not have standing to contest the search of the car unless the People rely on the statutory presumption, i.e., the occupants of a car possess contraband in the car. Here the People relied on testimony from an officer who saw the defendant put an object on the floor of the car under his seat and the barrel of the gun was in plain view. The defendant had no ownership or possessory interest in the car. The People did not rely on the statutory presumption. So defendant did not have standing move to contest the search of the car.
IN THIS DISPUTE BETWEEN PLAINTIFF BEER DISTRIBUTORS AND DEFENDANT BEER COMPANY, THE SECOND DEPARTMENT HELD THAT ALCOHOLIC BEVERAGE CONTROL ACT SECTION 55-C(4), WHICH PROHIBITS TERMINATION OF A DISTRIBUTION AGREEMENT WITHOUT GOOD CAUSE AND AN OPPORTUNITY TO CURE, APPLIES TO BOTH WRITTEN AND ORAL CONTRACTS; THE COURT WENT ON TO FIND THAT THE COMPLAINT, WHICH WAS BASED ON AN ORAL DISTRIBUTION AGREEMENT, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF SECTION 55-C(4) (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Hom, in a matter of first impression, determined the “Alcoholic Beverage Control Act § 55-c(4) [hereinafter “the Act”], which prohibits the termination of agreements between brewers and beer wholesalers without good cause and an opportunity to cure, applies to non-written agreements.” Plaintiffs are beer distributors. Plaintiffs’ distribution contracts with defendant beer company (Yuengling) were oral. Defendant purported to terminate plaintiffs’ distribution contracts. In response to plaintiffs’ lawsuit alleging violation of the Act, defendants argued the Act does not apply to oral contracts. The Second Department held that the Act does apply to oral contracts, but determined the complaint did not state a cause of action for breach of the Act
:…[W]e conclude that the amended complaint in this action failed to state a cause of action alleging violations of Alcoholic Beverage Control Law § 55-c because the plaintiffs failed to plead the essential and material terms of their alleged distribution agreements. Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 2025 NY Slip Op 04730, Second Dept 8-20-25
Practice Point: Consult this decision for a statutory-interpretation analysis where the statute is ambiguous. The issue here was whether a statute, which required that any termination of a beer distribution agreement be for good cause with an opportunity to cure, applied to both written and oral contracts. The court resolved the ambiguity in favor of protecting oral as well as written agreements.
PLAINITFF’S AGENTS WHO MAILED THE RPAPL 1304 NOTICE OF FORECLOSURE WERE NOT IDENTIFIED IN PLAINTIFF’S AFFIDAVIT OFFERED IN SUPPORT OF SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING; ALSO, THE AFFIDAVIT PROVIDED NO FOUNDATION FOR SUBMITTED DOCUMENTS FROM A THIRD-PARTY VENDOR; THEREFORE PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the affidavit submitted by the plaintiff in this foreclosure action to demonstrate the proper mailing of the RPAPL 1304 notice of foreclosure was deficient, requiring denial of plaintiff’s motion for summary judgment:
… [P]laintiff submitted an affidavit of Connie Melendez, an employee of the plaintiff. … Melendez’s affidavit failed to establish that notice was sent … in the manner required by RPAPL 1304. While Melendez averred that she had personal knowledge of the plaintiff’s standard office mailing procedures and described those purported procedures, she acknowledged that the mailings were carried out “by and through [the plaintiff’s] agents.” However, Melendez did not identify who those agents were or attest that she was familiar with their standard office mailing procedures. Thus, Melendez’s affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, Melendez’s affidavit failed to address the nature of the plaintiff’s relationship with a certain third-party vendor and whether the third-party vendor’s records were incorporated into the plaintiff’s own records or routinely relied upon in the plaintiff’s business … . Thus, Melendez’s affidavit failed to lay a foundation for the admission of a transaction report generated by the third-party vendor … . Finally, “the tracking numbers on the copies of the . . . notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . Likewise, a “Proof of Filing Statement” from the New York State Banking Department pursuant to RPAPL 1306 failed to establish, prima facie, the plaintiff’s compliance with the requirements of RPAPL 1304 … . For the same reasons, the plaintiff failed to establish, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage agreement was properly transmitted prior to the commencement of this action … . Nationstar Mtge., LLC v Ricks, 2025 NY Slip Op 04728, Second Dept 8-20-25
Practice Point: Agents who mailed the RPAPL 1304 notice were not identified in plaintiff’s affidavit and plaintiff’s relationship with a third party vendor was not demonstrated. Therefore the affidavit submitted by plaintiff in this foreclosure action did not prove proper mailing of the notice of foreclosure and did not demonstrate compliance with related provisions in the mortgage agreement.