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DEFENDANTS’ CONCLUSORY AND UNSUBSTANTIATED CLAIMS DID NOT REBUT THE SWORN ALLEGATIONS OF PROPER SERVICE AND MAILING OF THE SUMMONS, COMPLAINT AND REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1303 NOTICE IN THIS FORECLOSURE ACTION; THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the complaint in the foreclosure action on the ground defendants were never served should not have been granted:

… [T]he affidavit of service contained sworn allegations reciting that service was made upon Simone Cohen at 4:48 p.m. on March 3, 2009, by delivering to her the summons, complaint, and notice required by RPAPL 1303 at the subject property. The affidavit of service included a description of Simone Cohen. Another affidavit of service of the same process server contained sworn allegations reciting that service was made upon Avi Cohen by delivering a copy of the relevant papers to “SIMONE COHEN (WIFE),” a person of suitable age and discretion, at 4:48 p.m. on March 3, 2009, at the subject property, “[s]aid premises being the Defendant’s dwelling place within the State of New York,” and described Simone Cohen as above. The process server further averred that on March 4, 2009, he mailed those documents to Avi Cohen at the address of the subject property “by depositing a true copy of the same in a postpaid, properly addressed envelope in a[n] official depository under the exclusive care and custody of the United States post office.” Two additional affidavits of service recited that on March 4, 2009, copies of the summons were mailed to each defendant at the subject property.

Contrary to the determination of the Supreme Court, the defendants’ submissions failed to rebut the affidavit of service, since they stated only that Simone Cohen could not have been present at the time of the alleged service since she picked up her children from school every Tuesday and that she could not have understood or answered the process server’s questions or understood the import of the legal papers since she was not proficient in English. The defendants’ conclusory and unsubstantiated submissions did not rebut the sworn allegation that a person fitting the physical description of Simone Cohen was present at the residence at the time and accepted service … . Moreover, Avi Cohen did not deny that he received the papers in the mail and thus did not overcome the inference of proper mailing that arose from the affidavit of service … . Nationstar Mtge., LLC v Cohen, 2020 NY Slip Op 04312, Second Dept 7-29-20

 

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LOST NOTE AFFIDAVIT INSUFFICIENT TO ESTABLISH STANDING; PROOF OF COMPLIANCE WITH RPAPL 1304 INSUFFICIENT; OUT OF STATE AFFIDAVIT LACKED A CERTIFICATE OF CONFORMITY; NEITHER PLAINTIFF NOR DEFENDANT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).
MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).
PLAINTIFF’S DECEDENT WAS TAKEN TO THE DEFENDANT HOSPITAL’S EMERGENCY ROOM AND WAS OPERATED ON BY AN INDEPENDENT SURGEON; PLAINTIFF DEMONSTRATED THE EMERGENCY ROOM EXCEPTION APPLIED AND THE HOSPITAL WAS VICARIOUSLY LIABLE FOR THE SURGEON’S ALLEGED MALPRACTICE (SECOND DEPT).
FACT THAT PLAINTIFF SLIPPED AND FELL ON A MARBLE FLOOR DID NOT ESTABLISH THE CAUSE OF THE FALL, COMPLAINT SHOULD HAVE BEEN DISMISSED.
CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT).
EVIDENCE DEFENDANT HAD BEEN ACCUSED OF FRAUDULENTLY PRACTICING DENTISTRY IN THE PAST WAS NOT RELEVANT TO THE INSTANT PROCEEDING ALLEGING THE UNLICENSED PRACTICE OF DENTISTRY; THE PREJUDICIAL EFFECT WAS EXACERBATED BY REFERENCES TO THE ALLEGED FRAUD BY THE PROSECUTOR IN SUMMATION AND BY THE JUDGE IN THE INSTRUCTIONS TO THE JURY; DEFENDANT’S CONVICTION REVERSED (SECOND DEPT).
WAIVER OF APPEAL INVALID, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT).

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