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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, reversing defendant’s conviction, determined defendant should have been allowed to present reverse Molineux evidence (evidence that defendant did not commit other robberies committed close in time to the charged robberies with a similar modus operandi) as well as a fingerprint card which would show the absence of a blemish on defendant’s palm which was described by one of the robbery victims. Defendant was denied his right to present a defense. With regard to the reverse Molineux evidence, the court wrote:

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Given defendant’s right to use reverse Molineux evidence, defense counsel sought to introduce two categories of evidence. First, counsel wanted to introduce the surveillance videos from the three robberies for which defendant was not on trial to show that he was not depicted in them: the jury was entitled to make its own assessment that the person sitting before them in the courtroom did not match the person shown in the three videos. There was no evidentiary rule that would have excluded the surveillance videos.

Second, defense counsel sought to introduce evidence that three witnesses from uncharged robberies had viewed lineups in which defendant participated, but had not identified him as the man who had robbed them. Had defense counsel presented the failure-to-identify testimony directly through each eyewitness, no evidentiary bar could have been raised: each eyewitness would have been qualified to say that he or she had viewed defendant in a lineup and that defendant was not the man who had robbed him or her. Had defense counsel been unable to find each of the eyewitnesses, or been otherwise unavailable to testify, and had instead sought only to introduce one or more of the failures to identify through the detective who had supervised the lineup, the detective’s testimony would have been hearsay. Counsel could have overcome the hearsay objection by showing that the identifications were admissible on constitutional grounds because they were reliable … . People v Montgomery, 2018 NY Slip Op 00351, First Dept 1-18-18

CRIMINAL LAW (EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/REVERSE MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/THIRD PARTY CULPABILITY (CRIMINAL LAW, EVIDENCE,  DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, RIGHT TO PRESENT A DEFENSE, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, CONSTITUTIONAL LAW, DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT REVERSE MOLINEUX THIRD PARTY CULPABILITY EVIDENCE, EVIDENCE THAT DEFENDANT DID NOT COMMIT OTHER UNCHARGED ROBBERIES WHICH HAD THE SAME MODUS OPERANDI AS THE CHARGED ROBBERIES, AS WELL AS AN EXCULPATORY FINGERPRINT CARD, CONVICTION REVERSED (FIRST DEPT))

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FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT).

The Third Department noted that a federal drug conspiracy conviction cannot be used as a predicate felony for a second felony offender adjudication and remitted for resentencing. The defendant had pled guilty to attempted criminal sale of a controlled substance and was sentenced to probation. When he violated the terms of probation he was sentenced to prison as a second felony offender. The Third Department noted that an illegal sentence issue need not be preserved for appeal by objection:

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Defendant … contends that his federal drug conspiracy conviction does not qualify as a predicate New York felony and, therefore, it cannot serve as a basis for his second felony drug offender adjudication. Although this claim is being raised for the first time on appeal, we find that the claim “falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record”… . In the special information charging a predicate offense, the People alleged that defendant was previously convicted in the US District Court for the Northern District of New York of conspiracy to distribute marihuana (21 USC §§ 841, 846). However, the Court of Appeals has determined that, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . We therefore vacate the sentence and remit the matter to County Court for resentencing … . People v Sumter, 2018 NY Slip Op 00354, Third Dept 1-18-17

 

CRIMINAL LAW (PREDICATE FELONY, SENTENCING, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION (THIRD DEPT))/SENTENCING (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/PREDICATE FELONY (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/SECOND FELONY OFFENDER (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/FEDERAL DRUG CONSPIRACY (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE, (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))

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IN A COMPREHENSIVE AND METICULOUS DECISION, THE SECOND DEPT, AFTER ANALYZING THE LAYERS OF APPLICABLE CONSTITUTIONAL AND STATUTORY AUTHORITY, DETERMINED NASSAU COUNTY WAS AUTHORIZED TO BASE REAL PROPERTY TAX ASSESSMENTS ON THE INCOME GENERATED BY THE PROPERTY (SECOND DEPT).

The Second Department, in a comprehensive and meticulous decision, determined Nassau County had the authority to enact a Local Law which required income-property owners to disclose the income generated by the property to the county for real property tax assessments. The decision, which is too detailed to summarize here,  goes through all the conceivable layers of constitutional (including the Municipal Home Rule Law) and statutory authority which authorized the income-based property tax assessments:

… [The] provisions of the Nassau County Charter constitute an express and unambiguous delegation of the authority to make and prepare real property tax assessments from the State Legislature to Nassau County in accordance with the NY Constitution … . Since Local Law 8-2013 unquestionably relates to the authority to make and prepare tax assessments, and since the County Legislature has the authority to enact local laws related to that purpose, the Supreme Court properly declared that the defendants were authorized to enact and enforce Local Law 8-2013. Boening v Nassau County Dept. of Assessment, 2018 NY Slip Op 00272, Second Dept 1-17-18

REAL PROPERTY TAX (IN A COMPREHENSIVE AND METICULOUS DECISION, THE SECOND DEPARTMENT, AFTER ANALYZING THE LAYERS OF APPLICABLE CONSTITUTIONAL AND STATUTORY AUTHORITY, DETERMINED NASSAU COUNTY WAS AUTHORIZED TO BASE REAL PROPERTY TAX ASSESSMENTS ON THE INCOME GENERATED BY THE PROPERTY (SECOND DEPT))/MUNICIPAL LAW (REAL PROPERTY TAX, IN A COMPREHENSIVE AND METICULOUS DECISION, THE SECOND DEPARTMENT, AFTER ANALYZING THE LAYERS OF APPLICABLE CONSTITUTIONAL AND STATUTORY AUTHORITY, DETERMINED NASSAU COUNTY WAS AUTHORIZED TO BASE REAL PROPERTY TAX ASSESSMENTS ON THE INCOME GENERATED BY THE PROPERTY (SECOND DEPT))/CONSTITUTIONAL LAW (NY) (MUNICIPAL LAW, REAL PROPERTY TAX, IN A COMPREHENSIVE AND METICULOUS DECISION, THE SECOND DEPARTMENT, AFTER ANALYZING THE LAYERS OF APPLICABLE CONSTITUTIONAL AND STATUTORY AUTHORITY, DETERMINED NASSAU COUNTY WAS AUTHORIZED TO BASE REAL PROPERTY TAX ASSESSMENTS ON THE INCOME GENERATED BY THE PROPERTY (SECOND DEPT))/HOME RULE (MUNICIPAL LAW, REAL PROPERTY TAX, IN A COMPREHENSIVE AND METICULOUS DECISION, THE SECOND DEPARTMENT, AFTER ANALYZING THE LAYERS OF APPLICABLE CONSTITUTIONAL AND STATUTORY AUTHORITY, DETERMINED NASSAU COUNTY WAS AUTHORIZED TO BASE REAL PROPERTY TAX ASSESSMENTS ON THE INCOME GENERATED BY THE PROPERTY (SECOND DEPT))

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DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT).

The Second Department, interpreting both real estate law and the canons of the Protestant Episcopal Church, determined a corrected deed superseded the deed which indicated the property was held in trust for defendant church, St. Matthias. St. Matthias had separated from the Episcopal Church and both the corrected deed and the applicable canons eliminated St. Matthias’s property rights:

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The 1905 corrected deed removed any language indicating that the property was being held in trust for the congregation of St. Matthias. Where a deed of correction has been obtained, the corrective deed will control and the title of the grantee will be determined by the new grant … . The 1905 deed superseded the 1904 deed and was controlling.

Even if the 1905 deed did not supersede the 1904 deed, the Supreme Court was correct in holding that the ownership of the property vested in the [plaintiff] upon the separation of St. Matthias … from the Episcopal Church pursuant to the applicable canons of the … National Church … and the plaintiff Episcopal Diocese of Long Island … . By accepting the principles of the National Church and the Diocese for approximately 100 years, the defendants were subject to their canons, rules, and practices … .  Episcopal Diocese of Long Is. v St. Matthias Nondenominational Ministries, Inc., 2018 NY Slip Op 00276, Second Dept 1-17-18

REAL PROPERTY LAW (DEED, RELIGIOUS LAW, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/DEEDS (CORRECTED DEED,  DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/RELIGION (CANONS OF THE EPISCOPAL CHURCH, REAL PROPERTY,  DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/CANONS OF THE EPISCOPAL CHURCH DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))

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PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT).

The Second Department, in a comprehensive full-fledged opinion by Justice Leventhal, determined that plaintiff was entitled to punitive damages in a medical malpractice action stemming from the defendant doctor’s (Mercado’s) destruction of handwritten notes made at the time plaintiff’s decedent was seen by the doctor. Plaintiff’s decedent, a child, Claudialee, died as a result of Mercado’s failure to diagnose diabetes:

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… [W]e now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct. Thus, the Supreme Court did not err in submitting the issue of punitive damages to the jury … . Gomez v Cabatic, 2018 NY Slip Op 00278, Second Dept 1-17-18

NEGLIGENCE (MEDICAL MALPRACTICE, PUNITIVE DAMAGES, PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT))/MEDICAL MALPRACTICE (PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, PUNITIVE DAMAGES, DESTRUCTION OF WRITTEN NOTES, PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT))/DAMAGES (MEDICAL MALPRACTICE, PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT))/PUNITIVE DAMAGES (MEDICAL MALPRACTICE, PUNITIVE DAMAGES PROPERLY SENT TO THE JURY IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANT DOCTOR DESTROYED HAND WRITTEN NOTES MADE WHEN SEEING PLAINTIFF’S DECEDENT, A CHILD, WHO DIED BECAUSE OF THE DOCTOR’S FAILURE TO DIAGNOSE DIABETES (SECOND DEPT))

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BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to renew and reargue in this foreclosure action should not have been granted:

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A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance  … . Renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” … . …

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A motion for leave to reargue is similarly directed to the trial court’s discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied law (see CPLR 2221[d] …). Here, … the court, in its initial determination, did not overlook or misapprehend relevant facts or misapply the law in deciding that [the bank] had failed to meet its prima facie burden on the issue of standing, thus requiring denial of its motion … . JPMorgan Chase Bank, N.A. v Jeffrey Novis, 2018 NY Slip Op 00281, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT)).CPLR 2221 (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))

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AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of merit submitted by the bank did not demonstrate the affiant had the authority to act on the bank’s behalf:

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“Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party” … . Here, the plaintiff submitted an affidavit of merit executed by the Vice President of Loan Documentation for the plaintiff’s purported “servicer.” However, there is no evidence in the record demonstrating that the Vice President of Loan Documentation had the authority to act on behalf of the plaintiff. Under such circumstances, the Supreme Court should have denied those branches of the plaintiff’s motion which were for leave to enter a default judgment … and for an order of reference, with leave to renew upon proper papers … . HSBC Bank USA, N.A.. v Cooper, 2018 NY Slip Op 00280, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, DEFAULT JUDGMENT, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/AFFIDAVIT OF MERIT (CIVIL PROCEDURE, DEFAULT JUDGMENT, FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPRL 3215  (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE ACTION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) in this foreclosure action. Therefore defendant’s motion for summary judgment should have been granted:

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The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of a vice president for loan documentation of the loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … .

The Supreme Court erred in denying the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him based upon the plaintiff’s failure to comply with RPAPL 1304. The defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him, submitting, inter alia, his own affidavit attesting that he did not receive any notice pursuant to RPAPL 1304 … . U.S. Bank N.A. v Henry, 2018 NY Slip Op 00326, Second Dept 1-17-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE ACTION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE ACTION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice provisions of the Real Property Actions and Proceedings Law (RPAPL). Therefore the bank’s summary judgment motion should not have been granted:

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… [T]he plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 … .. In moving for summary judgment, the plaintiff submitted the affidavit of Jason Ussery, a representative of its loan servicer, who stated that “[a]t least 90 days prior to the commencement of the action, notice was sent to Defendant by certified mail and first class mail to the last known address of the Defendant and, if different, to the residence that is the subject of the mortgage.” Ussery annexed copies of the 90-day notices mailed to the defendant, all of which contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service … . Moreover, Ussery did not make the requisite showing that he was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Bank of N.Y. Mellon v Zavolunov, 2018 NY Slip Op 00271, Second Dept 1-17-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, NOTICE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings to enable a child to petition for special immigrant juvenile status:

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… [T]he record supports a finding that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment … . The child testified that, while in El Salvador, although he was approached by gang members to join their gang during his walk to school, his parents did not make any arrangements for his transportation to and from school to ensure his safety or do anything to deter such recruitment activities although aware of such activities and the fact that a neighborhood boy, who resisted the gang’s efforts, was killed while traveling to another village … . Moreover, the child testified that his parents strongly encouraged him to leave the family home in El Salvador but did not provide alternate living arrangements and have not supported him since his arrival in New York.

Accordingly, the Family Court should have granted the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment. Matter of Nelson A. G.-L. (Maria Y. G. S.), 2018 NY Slip Op 00289, Second Dept 1-17-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

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