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“Lack of Standing” Defense to Foreclosure Action Is Waived If Not Raised in the Answer or a Pre-Answer Motion to Dismiss

The Second Department determined plaintiff was entitled to summary judgment on its foreclosure action, noting that any defense based upon plaintiff’s alleged lack of standing was waived because it was not raised in the answer or in a pre-answer motion to dismiss the complaint:

“A party’s alleged lack of standing to commence [an] action is a defense that is waived if not raised in an answer or in a pre-answer motion to dismiss the complaint” … . “Where, as here, the defendants in a mortgage foreclosure action waive the issue of standing by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint (see CPLR 3211[e]), the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law” … . In this case, the plaintiff established, prima facie, its entitlement to judgment as a matter of law for the unpaid principal balance of the note … . In this regard, the plaintiff presented the subject mortgage, the unpaid note, evidence of [defendant’s] default, and evidence demonstrating that the unpaid principal balance remaining on the note totaled $434,382.89 … . In opposition, [defendant] failed to raise a triable issue of fact … . JP Morgan Chase Bank, N.A. v Butler, 2015 NY Slip Op 04812, 2nd Dept 6-10-15

 

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Management Agreement Did Not Give Rise to Tort Liability for Slip and Fall

In determining the management agreement with a hospital did not give rise to tort liability for a slip and fall on the hospital premises, the Second Department explained the relevant law:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely … . “As part of its prima facie showing, a contracting defendant is only required to negate the applicability of those Espinal exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff’s bill of particulars” … .

Here, the plaintiffs alleged that Sodexo [the building manager] maintained and controlled the premises. Sodexo established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs were not parties to the management agreement and thus, it owed the injured plaintiff no duty of care …; that the management agreement was not so comprehensive and exclusive as to displace the Hospital’s duty to maintain the premises safely …; and that it did not create the allegedly hazardous condition … . In opposition, the plaintiffs failed to raise a triable issue of fact. Sperling v Wyckoff Hgts. Hosp., 2015 NY Slip Op 04840, 2nd Dept 6-10-15

 

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Allowing a Detective Who Was Involved in the Investigation of Defendant’s Case to Testify as an “Expert” Was Error (Harmless Here However)–Although the Detective Was Ostensibly to Testify as an Expert Who Could “Translate” Code Words Used in Recorded Conversations, His Testimony Extended into Many Areas Which Did Not Involve Code Words, Thereby Imbuing HIs Entire Testimony with an Aura of Expertise—Such Improper “Expert” Testimony Usurps the Jury’s Role

Although the error was deemed harmless here, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined it was error to allow a detective, who was involved in the underlying murder investigation, to testify as an “expert.” The detective was asked to explain the meaning of so-called “code words” used in recorded conversations admitted into evidence. But it was clear that the trial court allowed the detective to testify as an “expert” on matters that had nothing to do with translating code words.  As a result, the detective’s testimony was imbued with an aura of expertise which could have improperly added weight to his testimony in the eyes of the jury.  Because this issue has not been addressed by New York courts, the Court of Appeals turned to two Second Circuit cases which held the improper “expert” testimony, on topics not beyond the “ken of the jurors,” usurped the jury’s role:

We have, for example, permitted expert testimony by a police sergeant respecting the way in which street-level drug sales are transacted to help a jury understand why the failure to recover drugs or marked buy-money from an individual apprehended in a buy-and-bust operation is not necessarily indicative of the accused’s misidentification (People v Brown, 97 NY2d 500 [2002]). It is instructive to note, however, that the testimony of the sergeant in Brown was carefully limited by the trial court to a discrete issue beyond the ken of ordinary jurors, and that the sergeant was not himself involved in the underlying investigation and gave no testimony as to what had actually occurred during the buy-and-bust there involved. The situation is very different where a police officer, qualified as an expert, has participated in the investigation of the matter being tried and, with the mantel of an expert steeped in the particulars of the case, gives seemingly authoritative testimony directly instructive of what facts the jury should find. Our cases have not dealt with this problematic scenario, but those of the Second Circuit, most notably United States v Mejia (545 F3d 179 [2d Cir 2008]) and United States v Dukagjini (326 F3d 45 [2d Cir 2002]), have.

In both of those cases, law enforcement officers involved in the investigations upon which the defendants’ prosecutions were founded were duly qualified as experts but permitted to testify as apparent experts beyond their expertise and upon matters well within the grasp of lay jurors. In exploring the full reach of the permission they had been afforded, they became summation witnesses, instructing the jury comprehensively and with an aura of expertise, as to how the particular factual issues presented in each case should be resolved. This, said the Mejia court, amounted to a “usurpation of the jury’s role” (545 F3d at 191), and was objectionable as well, in both Mejia and Dukagjini, for operating to inject hearsay into the evidentiary mix and to abridge the defendants’ constitutional right to confront the witnesses against them; both case agent witnesses, as putative experts, had premised their testimony largely on inadmissible out-of-court statements, even when that testimony ceased to be expert and went only towards proving particular facts. People v Inoa, 2015 NY Slip Op 04790, CtApp 6-10-15

 

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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

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Once Payment of a No-Fault Claim Submitted by the Medical Provider to the Insurer Is Overdue (Because the Insurer Has Not Timely Denied, Paid or Asked for Verification of the Claim) the Medical Provider Is Entitled to Summary Judgment Upon the Submission of Proof, in Admissible Form, that the Statutory Claim Form Was Mailed to and Received by the Insurer—The Medical Provider Need Not Submit Proof of the Validity of the Underlying Medical Services

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined, once a no-fault claim is overdue (because the insurance company has not denied the claim, asked for verification of the claim, or paid the claim, within the statutory time-period), the plaintiff-medical-provider is entitled to summary judgment on the overdue claims after submitting proof the statutory claim forms were mailed to and received by the insurer.  There is no requirement that the plaintiff submit proof of the validity of the underlying medical services:

…[T]he Appellate Division properly determined that plaintiff met its prima facie summary judgment burden. As relevant here, to support its motion, plaintiff submitted the eight verification of treatment forms and Matatov’s affidavit. The documents submitted by plaintiff meet the business records exception to the hearsay rule.

Malatov’s [the billing agent’s] affidavit states that based on his business agreement with plaintiff, SUM Billing created the verification of treatment forms in the regular course of its business and that the forms were created soon after the services were provided by plaintiff … . Indeed, the tight timetable of the no-fault scheme requires prompt submission of proof of claim in order to receive reimbursement. Matatov’s affidavit outlines the office practices and procedures used by SUM Billing to mail claim forms to insurers and demonstrates that Matatov himself mails the forms. Matatov explained that SUM Billing relies on these forms in the performance of its business. Further, the affidavit states how and when the forms at issue here were created and that they were mailed to defendant within the statutory time frame. Thus, as plaintiff was able to demonstrate SUM Billing’s office mailing practices and procedures, “a presumption arises that those notices have been received by the insure[rs]” … . It is undisputed that defendant did not pay or deny seven out of the eight claims at issue. Consequently, those claims are overdue. Plaintiff, therefore, satisfied its burden on summary judgment by demonstrating the mailing of the proof of claim forms, and their receipt by the insurer. Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787, CtApp 6-10-15

 

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Question of Fact Whether a Building Manager Owed a Duty to Plaintiff—Plaintiff, a Sidewalk Pedestrian, Was Struck by Window-Washing Equipment—The Window Washing Service Was an Independent Contractor Hired by the Building Manager—Question of Fact Raised Whether a Duty to the Plaintiff Ran from the Building Manager Because of the Inherently Dangerous Work the Independent Contractor Was Hired to Do and Because of the Nature of the Contract Between the Building Manager and the Building Owner—The Court Noted that the Property Owners Were Not Liable Because Ownership and Control of the Building on the Property Had Been Transferred (to the Building Owner)

The Second Department determined there was a question of fact whether a building manager (Milford) who hired a window washing service (Red Cap) could be liable for injury to a pedestrian (plaintiff) struck by a piece of window-washing equipment which fell. Although Red Cap was an independent contractor, plaintiff raised a question of fact about whether Milford owed a nondelegable duty to plaintiff because the work it hired Red Cap to do was inherently dangerous (in the absence of warning signs and pedestrian barriers) and whether the building management services contract between Milford and the building-owner (S & P) was sufficiently comprehensive and exclusive to create a duty running to plaintiff. The court noted that the property owners were not liable because ownership and control of the building (on the property) had been transferred (to the building-owner):

Milford established its prima facie entitlement to judgment as a matter of law by submitting proof that Red Cap was an independent contractor and, thus, it could not be held liable for Red Cap’s negligent acts …, and that, as S & P’s contractual managing agent, it owed no duty to the plaintiff … . However, in opposition, the plaintiff raised triable issues of fact as to whether Milford owed a nondelegable duty to the plaintiff because it knew or had reason to know that the work it hired Red Cap to perform was inherently dangerous to pedestrians in the absence of warning signs or barriers on the sidewalk below the window-washing apparatus …, and whether the property management services agreement with S & P was sufficiently comprehensive and exclusive so as support a duty running to the plaintiff … . Baek v Red Cap Servs., Ltd., 2015 NY Slip Op 04794, 2nd Dept 6-10-15

 

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The Guardian of an Incapacitated Person May Not, After the Incapacitated Person’s Death, Use Guardianship Funds to Pay a Debt Incurred by the Incapacitated Person Prior to Death (Here a Debt Owed the Nursing Home Where the Incapacitated Person Was Cared For)

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined Mental Hygiene Law 81.44 does not permit “a guardian to retain property of an incapacitated person after the incapacitated person has died for the purpose of paying a claim against the incapacitated person that arose before such person’s death.” “… [T]he issue [here was] whether property held by … [the] guardian at the time of [the incapacitated person’s] death automatically became the property of her estate or could be withheld by [the guardian] for the purpose of paying the claim, out of the guardianship account, that [the nursing home] had noticed before [the incapacitated person] died.” Based upon the legislative history of Mental Hygiene Law 81.44, the court determined that, after an incapacitated person’s death, the guardian may use guardianship funds only to pay claims related to the administration of the guardianship, and may not use them to pay debts incurred by the incapacitated person:

The plain language of subdivision (d) of Mental Hygiene Law § 81.44 requires that it is to be read in conjunction with subdivision (e) of the same section, which considers the property a guardian may retain following the death of an incapacitated person. Further, our precedent requires such a review … . In subdivision (e) of section 81.44, the Legislature allowed a guardian to retain from the estate of a deceased incapacitated person “property equal in value to the claim for administrative costs, liens and debts” (emphasis added). That construct suggests that the Legislature meant to permit the retention only of property equal in value to the expenses incurred with respect to the administration of the guardianship, i.e., property needed to satisfy administrative costs, administrative liens, and administrative claims. * * *

…[The legislative history] compels the conclusion that the Legislature did not intend for section 81.44 to permit a guardian to retain funds following the death of an incapacitated person for the purpose of paying a claim (other than a claim related to the administration of the guardianship) against the incapacitated person that arose before that person’s death. Inasmuch as [the nursing home’s] claim for medical services rendered to [the incapacitated person] is unrelated to the administration of her guardianship, we conclude that Mental Hygiene Law § 81.44 does not allow [the guardian] to withhold from [the incapacitated person’s] estate funds to pay [the incapacitated person’s] debt to [the nursing home]. Matter of Shannon, 2015 NY Slip Op 04789, CtApp 6-10-15

 

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Presumption Vehicle Was Being Driven with the Owner’s Consent (Vehicle & Traffic Law 388) Was Not Overcome by Testimony of Vehicle Owner and Her Daughter—Summary Judgment Should Not Have Been Awarded on that Ground

The Second Department noted, in the context of a summary judgment motion, the testimony of the vehicle owner, Varela, and her daughter, an interested witness, was not sufficient to rebut the presumption that another was driving the vehicle with Verela’s consent (Vehicle and Traffic Law 388):

The Supreme Court should have denied that branch of Varela’s motion which was for summary judgment dismissing the complaint insofar as asserted against her. “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s express or implied permission” … . ” The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use'” … . The question of consent is ordinarily one for the jury … . Blassberger v Varela, 2015 NY Slip Op 04796, 2nd Dept 6-10-15

 

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The Medical Examiner Who Conducted an Autopsy of Plaintiffs’ 17-Year-Old Son Upon the Son’s Death in an Auto Accident Was Not Under a Statutory or Ministerial Duty to Return the Brain or to Inform Plaintiffs He Had Removed The Brain for Further Examination and Testing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined the medical examiner, who conducted an autopsy of plaintiffs’ 17-year-old son after his death in a car accident, was under no statutory or ministerial duty to inform plaintiffs he had removed plaintiffs’ son’s brain for further examination and testing, nor was he under a duty to return the brain. Plaintiffs therefore did not have a “negligent infliction of emotional distress” or “violation of right of sepulcher” cause of action against the city. (Plaintiffs had been awarded significant damages at trial:)

When the Legislature enacted statutes granting medical examiners (and others) the authority to conduct autopsies and dissections (see Public Health Law §§ 4209; 4210), it acknowledged through the enactment of section 4215 (1) that there would be situations where the decedent’s body may not be buried or incinerated within a reasonable time after the decedent’s death, as per section 4200 (1)’s directive. Thus, section 4215 strikes a balance permitting the lawful dissection of a body, while concomitantly ensuring that once the lawful purposes have been accomplished the body will be buried, incinerated or properly disposed of as per section 4200 (1), and that the penalties for the interference or injuries to the body would “apply equally to the remains of the body after dissection . . .”

When section 4200 (1) and section 4215 (1) are read in tandem, there is no language that would cause a medical examiner to divine from section 4215 (1) that he or she is required to return not only decedent’s body, but the organs and tissue samples that the medical examiner is legally permitted to remove. Similarly, our right of sepulcher jurisprudence does not mandate that a medical examiner return decedent’s organs and tissue samples. Thus, because there was no governing rule or statutory command requiring a medical examiner to turn over organs and tissue samples, it could not be said that he or she has a ministerial duty to do so. At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary, and, therefore, no tort liability can be imposed for either the violation of the common-law right of sepulcher or Public Health Law § 4215 (1). Once a medical examiner returns a decedent’s body sans the organs and tissue samples, the medical examiner for all intents and purposes has complied with the ministerial duty under section 4215 (1). Absent a duty to turn over organs and tissue samples, it cannot be said that the medical examiner has a legal duty to inform the next of kin that organs and tissue samples have been retained. * * *

There is simply no legal directive that requires a medical examiner to return organs or tissue samples derived from a lawful autopsy and retained by the medical examiner after such an autopsy. The medical examiner’s obligations under both the common-law right of sepulcher and Public Health § 4215 (1) are fulfilled upon returning the deceased’s body to the next of kin after a lawful autopsy has been conducted. If the Legislature believes that next of kin are entitled to notification that organs, tissues and other specimens have been removed from the body, and that they are also entitled their return prior to burial of the body or other disposition, it should enact legislation delineating the medical examiner’s obligations in that regard, as it is the Legislature that is in the best position to examine the issue and craft legislation that will consider the rights of families and next of kin while concomitantly taking into account the medical examiner’s statutory obligations to conduct autopsies. Shipley v City of New York, 2015 NY Slip Op 04791, CtApp 6-10-15

 

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Because Prior Mortgage Foreclosure Action Had Been Abandoned Plaintiff Was Not Entitled to Dismissal of the Instant Action Pursuant to Real Property Actions and Proceedings Law (RPAPL) 1301(3) (Which Prohibits More than One Such Action at a Time)

The Second Department determined Real Property Actions and Proceedings Law (RPAPL) 1301(3) did not require dismissal of plaintiff’s foreclosure action.  Although the statute prohibits more than one action to recover a mortgage debt at a time, the pending action had been abandoned (although not formally discontinued). Therefore plaintiff’s action was viable:

RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.” The purpose of this statute is to protect the mortgagor “from the expense and annoyance” of simultaneously defending against two independent actions to recover the same mortgage debt … . Courts have recognized that this statute “should be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time” … .

Under the circumstances of this case, the Supreme Court properly determined that the defendant John Conlin was not entitled to dismissal of the complaint pursuant to RPAPL 1301(3). The record supports the conclusion that the plaintiff’s assignor, the former mortgagee, effectively abandoned its prior action to foreclose the mortgage because its status as a junior mortgagee made it improbable that foreclosure would satisfy the underlying debt. Although the foreclosure action was not formally discontinued, the effective abandonment of that action is a “de facto discontinuance” which militates against dismissal of the present action pursuant to RPAPL 1301(3) … . Old Republic Natl. Tit. Ins. Co. v Conlin, 2015 NY Slip Op 04826, 2nd Dept 6-10-15

 

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