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PROOF THE MORTGAGE WAS ASSIGNED TO PLAINTIFF WITHOUT PROOF THE NOTE WAS ALSO ASSIGNED BEFORE THE ACTION WAS COMMENCED IS NOT SUFFICIENT TO DEMONSTRATE STANDING TO FORECLOSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff did not demonstrate it had standing to foreclosure. Plaintiff proved the assignment of the mortgage to it, but did not prove the assignment of the note. In addition, plaintiff did not prove it physically possessed the note which had been indorsed to it:

While plaintiff’s papers established that the original noteholder, nonparty Realty Closing Solution LLC, assigned the note to nonparty 1Sharpe Opportunity Intermediate Trust (1Sharpe) on June 24, 2019, plaintiff did not establish that 1Sharpe assigned the note to plaintiff before this action was commenced. Instead, plaintiff established that 1Sharpe assigned the mortgage to plaintiff. Without also assigning the note, the assignment of the mortgage, by itself, is of no incident because “a transfer of the mortgage without the debt is a nullity” … . …

… [P]laintiff did not establish that it physically possessed the note indorsed to it. Plaintiff relies on an allonge from 1Sharpe included with the note in the complaint. However, plaintiff furnished no evidence, either by producing the physical note or through the attestations of its affiant … that this allonge, which was indorsed in blank, was “firmly affixed” to the note (UCC 3-202[2]…). 1S REO Opportunity 1, LLC v Harlem Premier Residence, LLC, 2025 NY Slip Op 00016, First Dept 1-2-25

Practice Point: Here the plaintiff demonstrated the mortgage was assigned to it but did not demonstrate the note was assigned to it before the action was commenced. Therefore the plaintiff did not prove it had standing to foreclose.

 

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PLAINTIFF SLIPPED AND FELL ON A WET SPOT ON THE MARBLE FLOOR IN THE CONDOMINIUM LOBBY DURING A SNOW STORM; THE DEFENDANT CONDOMINIUM HAD PLACED RUBBER MATS ON THE FLOOR AND PERIODICALLY MOPPED WET SPOTS; THE STORM-IN-PROGRESS DOCTRINE APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant condominium was entitled to summary judgment in this wet-marble-floor slip and fall case. It was snowing at the time of the fall, triggering the storm-in-progress doctrine, and defendant had placed rubber mats on the floor and periodically mopped wet spots:

The condominium established prima facie entitlement to summary judgment by submitting certified weather reports demonstrating that there was an ongoing snowstorm at the time of accident, and that the “storm-in-progress” doctrine therefore applied … . The condominium demonstrated that it undertook reasonable maintenance measures to address the wet conditions created by tracked-in snow by laying rubber mats throughout the lobby, including an eight-foot runner from the building entrance to the elevator bank, as well as having the doorman and other staff dry mop any wet spots … . Although plaintiff’s accident took place on a small portion of the floor that was uncarpeted and remained uncovered, a defendant is not required under the “reasonable care” standard to cover all of its floors with mats to prevent someone from falling on moisture … . In response to the condominium’s prima facie showing, plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

The condominium also showed lack of actual notice of the specific wet condition that caused plaintiff to slip. The building’s doorman testified that he monitored the condition of the lobby throughout the day and would mop any wet spot, and plaintiff admitted that she did not see any wet condition on the floor when she left the building 15 minutes earlier … . Similarly, because the water might have been tracked in by plaintiff or by other residents entering the lobby, there is no basis for a finding of constructive notice … . Nor was the condominium’s general awareness that the floor might become wet while it was snowing sufficient to establish constructive notice of the specific condition that caused plaintiff’s injury … . Plaintiff’s opposition did not raise a triable issue of fact regarding notice…. . Hart v 210 W. 77 St. LLC, 2024 NY Slip Op 06655, First Dept 12-31-24

Practice Point: The storm-in-progress doctrine applied in this slip and fall case where plaintiff slipped on a wet spot on the lobby floor caused by tracked in snow during an snow storm.​

Practice Point: A general awareness that tracked-in snow will result in wet spots on a marble floor does not amount to constructive notice of the specific condition which caused plaintiff’s slip and fall.

 

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THE WORN MARBLE STAIRWAY TREAD WAS NOT AN ACTIONABLE DEFECT; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant property-owner (Marion) was entitled to summary judgment in this stairway slip and fall case. Defendant demonstrated it did not have actual or constructive notice of any defective condition on the stairs:

Marion demonstrated prima facie that the worn marble tread depicted in the photographs taken by plaintiff is not an actionable defect … . Plaintiff and Marion’s superintendent testified that the photographs taken by plaintiff accurately reflected the condition of the stair on the day of the accident, and there is no claim that the stair was wet, slippery, or covered with debris. Moreover, Marion’s expert opined that the accident could not have occurred as plaintiff described because when she fell, her left foot was in the middle of the tread rather than on the right-hand side where the worn condition she cited was located.

Marion also demonstrated that it did not have actual or constructive notice of a defective condition on the stair in that the superintendent testified that there were no complaints and no violations had been issued with respect to the stair. He stated that he swept the stairs five days and mopped three days a week, and that the photographs accurately depicted the condition of the stair on the day of the accident. Plaintiff’s complaints to the prior superintendent about the general condition of the stairs was insufficient to constitute notice of the specific condition cited by plaintiff as the cause of her fall … .

In opposition, plaintiff failed to raise a triable issue of fact as to Marion’s negligence. The opinion of her expert cited numerous dangerous conditions on the stairs and in the stairway, but plaintiff did not cite any of them as a proximate cause of her accident … . James v Chestnut Holdings of N.Y., Inc., 2024 NY Slip Op 06656, First Dept 12-31-24

Practice Point: Here, in this stairway slip and fall case, a worn tread in a marble stairway did not constitute an actionable defect.

 

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THE PROBATION CONDITION PROHIBITING DEFENDANT FROM USING PUBLIC TRANSPORTATION WAS NOT WARRANTED BY THE UNDERLYING CONVICTION; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the probation condition prohibiting defendant from using the subway, trains or buses for three years was not warranted because defendant did not commit the underlying crime on public transportation. The issue need not be preserved for appeal and survives a waiver of appeal:

The court improperly imposed, as a condition of probation, a requirement that defendant “[r]efrain from using or entering any Metropolitan Transportation Authority subway, train, bus, or other conveyance or facility for a period of up to three years.” Defendant did not commit the instant crime, or have a history of misconduct, on public transportation. Accordingly, the prohibition from using or entering any public transportation conveyance or facility was not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life … . Because this issue implicates the legality of the sentence imposed, it survives defendant’s waiver of the right to appeal and does not require preservation for appellate review … . People v Alvarez, 2024 NY Slip Op 06662, First Dept 12-31-24

Practice Point: A probation condition which is not warranted by the underlying conviction or by defendant’s prior record may be reversed even if the issue has not been preserved and and/or appeal has been waived.

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S FANNY PACK WAS A VALID SEARCH INCIDENT TO ARREST; CONVICTIONS REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions for tampering with evidence and resisting arrest, determined the search of defendant’s fanny pack was not demonstrated to have been a valid search incident to arrest:

The People failed to demonstrate that the search of defendant’s fanny pack was a proper search incident to a lawful arrest because they failed to establish either that the officer actually arrested defendant or intended to do so before opening his bag … . People v Lamberty, 2024 NY Slip Op 06669, First Dept 12-31-24

Practice Point: Here the People did not prove the officer who searched defendant’s fanny pack actually arrested defendant or intended to arrest the defendant before opening pack. Therefore the People did not prove the search was a valid search incident to arrest.

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THE PROBATION CONDITION REQUIRING DEFENDANT TO AGREE TO SEARCHES OF HIS PERSON, VEHICLE AND RESIDENCE WAS NOT WARRANTED BY THE CONVICTION (LEAVING THE SCENE OF AN ACCIDENT); THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the probation condition requiring defendant to agree to searches of his person, residence and vehicle for drugs, weapons or contraband was not warranted by his conviction for leaving the scene of an accident. The issue need not be preserved for appeal:

… [T]he court improperly imposed, as a condition of probation, a requirement that defendant consent to a search by a probation officer of his person, vehicle, or residence for illegal drugs, drug paraphernalia, weapons, or contraband … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted” … , and he “had no history of violence or use of weapons” (People v Hall, 228 AD3d at 467). His single misdemeanor conviction for marijuana possession preceded the instant offense by nearly a decade … . Thus, the consent to search condition was not “‘reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so'” … . We note that defendant’s challenge to the conditions of his probation did not require preservation … and would not be foreclosed even if the appeal waiver were valid … . People v Fernandez, 2024 NY Slip Op 06671, First Dept 12-31-24

Practice Point: A probation condition requiring that defendant agree to searches of his person, vehicle and residence must be warranted by the nature of the underlying conviction. The condition was not warranted for “leaving the scene of an accident.”​

 

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PLAINTIFF WAS INJURED IN A LYFT CAR WHICH HAD BEEN ORDERED BY HIS FRIEND THROUGH THE FRIEND’S ACCOUNT; BECAUSE PLAINTIFF HAD SCROLLED THROUGH AND AGREED TO LYFT’S TERMS OF SERVICE, WHETHER PLAINTIFF WAS BOUND BY THE ARBITRATION CLAUSE MUST BE DETERMINED BY THE ARBITRATOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who used another’s Lyft account to order transportation, and who was injured in an accident involving the Lyft car, was subject to an arbitration provision in the contract between Lyft and the account-holder. Whether the plaintiff was bound by the arbitration clause was deemed to be an issue to be decided by the arbitrator:

Arbitration must be compelled because plaintiff was a party to an arbitration agreement with Lyft that expressly delegated the threshold question of arbitrability to the arbitrator. It is undisputed that, prior to the subject accident, plaintiff scrolled through and agreed to Lyft’s Terms of Service (the TOS), which included an agreement to arbitrate. As part of the arbitration agreement, the parties agreed to delegate “disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement)” to the arbitrator. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision “even if the arguments of the party seeking to arbitrate ‘appear[] to the court to be frivolous’ or even ‘wholly groundless'” … .

There is no dispute that if plaintiff had ordered the subject ride through his own Lyft account, then the instant claims would be subject to arbitration because plaintiff was party to a valid and enforceable arbitration agreement with a valid and enforceable delegation provision — even if there were a question as to the arbitration agreement’s scope … . We find that the question of whether the agreement to arbitrate encompassed claims stemming from plaintiff’s presence in a Lyft that he did not order is a question of arbitrability that must be decided by the arbitrator … . Samuel v Islam, 2024 NY Slip Op 06675, First Dept 12-31-24

Practice Point: If you scroll through and agree to the terms of service when a Lyft car is ordered though another’s account, and you are subsequently injured in an accident in the Lyft car, you are compelled to arbitrate the question whether you are subject to the arbitration clause just as the account-holder would be.

 

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BEFORE HEARSAY CAN BE RELIED UPON BY THE COURT FOR A SORA RISK-LEVEL ASSESSMENT, THE PEOPLE MUST ESTABLISH A FOUNDATION SUPPORTING THE RELIABILITY OF THE HEARSAY (THIRD DEPT).

The Third Department, reversing County Court and remitting the SORA risk-assessment proceeding, determined County Court should not have relied on hearsay to prove that the adult in a photograph depicting sexual activity between an adult and a child was the defendant. The case was remitted to allow the People the opportunity to establish a foundation for the reliability of the hearsay:

In assessing defendant 25 points under risk factor 2 for sexual contact with the victim, County Court relied upon a contested statement in the case summary made by an assistant district attorney to the author of the case summary. The assistant district attorney stated that defendant had possessed an image depicting him and his female relative engaged in sexual activity. The People concede, and we agree, that County Court improperly relied upon this hearsay, without making an inquiry into its reliability, in assessing 25 points under risk factor 2 for sexual contact with the victim. While the court found that the photographs depicted sexual activity between the child and an adult, it made no finding that defendant was that adult. The People therefore failed to establish by clear and convincing evidence that there was any sexual contact between defendant and the victim … .

Although defendant argues that the remedy for the error is to subtract 25 points from risk factor 2 and, upon doing so, designate him a risk level one sex offender, we agree with the People that the more appropriate course is to remit the matter to the SORA court “to provide the District Attorney an opportunity to establish a foundation” supporting the hearsay’s reliability … . People v Davis, 2024 NY Slip Op 06632, Third Dept 12-26-24

Practice Point: The People must establish a foundation supporting the reliability of any hearsay relied upon by the court in a SORA risk-level assessment proceeding.​

 

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A STATEMENT ATTRIBUTED TO DEFENDANT IN A POLICE REPORT TO THE EFFECT THAT PLAINTIFF STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT IN THIS REAR-END COLLISION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was entitled to summary judgment on liability in this rear-end collision case. The court noted that evidence the car in which plaintiff was a passenger stopped suddenly was not enough to raise a question of fact:

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . “[A]n assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the vehicle owned by Elshaer and operated by Elnaggar struck Chowdhury’s vehicle in the rear, and in opposition, Elshaer and Elnaggar failed to raise a triable issue of fact. Contrary to Elshaer and Elnaggar’s contention, although a police report recounted Elnaggar’s statement that Chowdhury’s vehicle stopped suddenly prior to the rear-end collision, this statement was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the collision … . Chowdhury v Elshaer, 2024 NY Slip Op 06603, Second Dept 12-24-24

Practice Point: Here a statement attributed to defendant in a police report to the effect that plaintiff stopped suddenly was not sufficient to raise a question of fact about whether there was a nonnegligent explanation for the rear-end collision.

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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