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DEFENDANT’S MOTION TO RENEW HIS OPPOSITION TO THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; THE BANK HAD ORIGINALLY ALLEGED IT POSSESSED THE NOTE AND THEREFORE HAD STANDING TO FORECLOSE; SUBSEQUENTLY THE BANK SUBMITTED A LOST NOTE AFFIDAVIT IN SUPPORT OF ITS MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to renew his opposition to the bank’s motion for summary judgment should have been granted in this foreclosure action. In support of its summary judgment motion the bank alleged it had standing based upon possession of the note. However, in support of the bank’s subsequent motion to confirm the referee’s report the bank submitted a lost note affidavit:

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]), and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]).

Here, in support of his cross motion for leave to renew, the borrower had a reasonable justification for his failure to present the new facts in opposition to the original motion, since the plaintiff had previously—and unequivocally—represented that the original note was in Investors’ possession, and only later disclosed that the original note had in fact been lost, without providing any further details as to when the search for the note occurred, who conducted the search, and when the note was lost … .

Under these circumstances, the Supreme Court should have granted the borrower’s cross motion for leave to renew and, upon renewal, denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the borrower, to strike his answer and counterclaims, and for an order of reference, based on unresolved issues of fact regarding the plaintiff’s standing … . CitiMortgage, Inc. v Barbery, 2020 NY Slip Op 04377, Second Dept 8-5-20

 

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THE EVIDENCE DID NOT SUPPORT THE NEGLECT FINDING (SECOND DEPT).
DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT WHO MADE THE DRUG PURCHASES, WAS NOT ENOUGH TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH WARRANT; MATTER REMITTED FOR A DARDEN HEARING (SECOND DEPT).
THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).
ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT).
DEFENDANT’S EXCUSE WAS NOT REASONABLE; MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
DRIVER PURCHASED A GOODYEAR TIRE FOR HIS FORD FROM US TIRES, A NEW YORK CORPORATION; THE TIRE ALLEGEDLY FAILED LEADING TO A SERIOUS ACCIDENT IN VIRGINIA; DRIVER SUED US TIRES; US TIRES SUED GOODYEAR AND FORD, BOTH OUT-OF-STATE CORPORATIONS, SEEKING INDEMNIFICATION; NEW YORK HAS LONG-ARM JURISDICTION OVER GOODYEAR AND FORD IN THE US TIRES SUIT (SECOND DEPT). ​
THE BASES FOR THE UPWARD DEPARTURE WERE ALREADY TAKEN INTO ACCOUNT BY THE SORA RISK ASSESSMENT GUIDELINES; UPWARD DEPARTURE REVERSED (SECOND DEPT).

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