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THE VIDEO DID NOT SUPPORT THE CREATING-A-DISTURBANCE CHARGE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that the video evidence did support the charge:

… [S]ubstantial evidence was lacking to support the charge of creating a disturbance … . As relevant here, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility . . .[, which] includes . . . loud talking in a mess hall, program area or corridor” (7 NYCRR 270.2 [B] [5] [iv]). The misbehavior report stated that petitioner was talking to another incarcerated individual and that, after refusing to produce his identification card to a correction officer, “the other 38 [incarcerated individuals] began to take notice.” However, video of the incident does not reflect that petitioner’s conduct disturbed the order of the commissary bullpen area(see 7 NYCRR 270.2 [B] [5] [iv]), nor did it demonstrate that he was engaging in loud talk or other misconduct indicative of a disruption … . Matter of Ramos v Annucci, 2022 NY Slip Op 05255, Third Dept 9-22-22

Practice Point: Here the video of the incident did not support the charge that petitioner created a disturbance. The misbehavior determination was annulled.

 

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AN AFFIDAVIT WITHOUT THE RELEVANT BUSINESS RECORDS ATTACHED DID NOT DEMONSTRATE THE BANK’S COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the mailing requirements of RPAPL 1304 and therefore should not have been awarded summary judgment:

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendant by Green Tree [the loan servicer], it failed to demonstrate, prima facie, that the notice was actually mailed, either through an affidavit of mailing, other proof of mailing by the post office, or evidence of a standard office mailing procedure. Instead, the plaintiff merely submitted an affidavit from a representative of its attorney-in-fact, averring that the 90-day notice was sent by Green Tree in accordance with RPAPL 1304. That conclusory, unsubstantiated averment, standing alone, was insufficient to establish that the notice was actually mailed to the defendant by first-class and certified mail … . Moreover, the affiant based his assertions upon his review of unspecified business records without attaching any such business records to his affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Wilmington Sav. Fund Socy., FSB v Fernando, 2022 NY Slip Op 05231, Second Dept 9-21-22

Practice Point: In a foreclosure action, at the summary judgment  stage, proof the notice of foreclosure was mailed in accordance with RPAPL 1304 cannot be demonstrated by an affidavit which refers to documents that are not attached.

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THE BANK DID NOT SUPPLY THE DOCUMENTS RELIED ON TO SHOW DEFENDANT’S DEFAULT AND DID NOT LAY A PROPER FOUNDATION FOR THE DOCUMENTS RELIED ON TO SHOW COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank did not attach the business records relied on to prove defendant’s default and did not lay a proper foundation for the records purporting to show compliance with the mailing requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted:

The plaintiff failed to demonstrate, prima facie, the defendant’s default in payment under the note. In her affidavit, Wallace [employee of the loan servicer] stated that the defendant failed to make certain payments due under the terms of the note and mortgage, but she failed to identify the records that she relied upon and did not attach those records to her affidavit … .

… The plaintiff relied upon Wallace’s affidavit, in which she averred that the RPAPL 1304 notice was sent to the defendant by certified and first-class mail. Although Wallace averred that she had personal knowledge of [the loan servicer’s] record-keeping practices and procedures, the business records she relied upon and attached to the affidavit were created by other entities. Wallace did not aver that she had personal knowledge of those entities’ business practices and procedures, or otherwise provide a proper foundation for the admission of those records … . U.S. Bank N.A. v Zakarin, 2022 NY Slip Op 05229, Second Dept 9-21-22

Practice Point: To prove a defendant’s default in a foreclosure action, the documents relied upon must be attached to the papers.

Practice Point: A proper foundation must be laid for documents relied upon to prove compliance with the mailing requirements of RPAPL 1304 in a foreclosure actions. Here the documents were not created by the affiant.

 

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PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, which continued the same treatment given by defendant podiatrist until an infection was later detected:

The [plaintiff’s] expert relied upon certain photographs of the decedent’s foot, which were taken by the decedent’s daughter … and which allegedly showed signs that the wound was a third-degree burn, and not a second-degree burn as diagnosed by Papathomas … . According to the plaintiff’s expert, the failure to undertake “aggressive procedures,” including debridement of necrotic tissue as seen in the photographs, “predisposed” the decedent to a wound infection, which ultimately led to the partial amputation of his right foot, the stress of which caused the decedent to suffer a heart attack and die. …

… [I]t is undisputed that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affirmation of a board-certified podiatrist, who opined within a reasonable degree of podiatric certainty that the care Papathomas rendered to the decedent was in accordance with good and accepted practice, and did not proximately cause or contribute to any injuries … . * * *

… [S]ince the opinion of the plaintiff’s expert is entirely speculative and unsupported by the decedent’s medical records, the expert’s affidavit was insufficient to raise a triable issue of fact. Specifically, the decedent’s medical records establish that … after Papathomas observed that the decedent’s wound had not improved, Papathomas referred the decedent to a wound care clinic. … [At the wound clinic] the decedent received the same course of treatment prescribed by Papathomas. Moreover, the decedent’s medical records from his admissions to Plainview Hospital … contain no causal connection between the amputation of the decedent’s foot and his subsequent death, and the care the decedent received from Papathomas. Templeton v Papathomas, 2022 NY Slip Op 05228, Second Dept 9-21-22

Practice Point: Here in this medical malpractice case, plaintiff’s expert’s affidavit was speculative and was not supported by the medical records. The affidavit, therefore, did not raise a question of fact.

 

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IN THIS SLIP AND FALL CASE AGAINST NYC, AT THE SUMMARY JUDGMENT STAGE, ONCE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION WHICH CAUSED THE FALL, THE PLAINTIFF MUST COME FOWARD WITH EVIDENCE AN EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT APPLIES, EVEN IF, AS HERE, THE COMPLAINT ALLEGES NO EXCEPTION APPLIES; CASE LAW TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, clarified the burdens of proof at the summary judgment stage where the municipality demonstrates it did not have written notice of the condition which allegedly caused plaintiff’s slip and fall. Once the city demonstrates a lack of written notice, the plaintiff must come forward with proof of an applicable exception to the written-notice requirement, even where, as here, the complaint alleged no exception applies. Precedent to the contrary should no longer be followed:

… [W]here, as here, “the City establishes that it lacked prior written notice under [Administrative Code § 7-201(c)(2)], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” …  Furthermore, we clarify that the burden-shifting standard … is applicable even where, as here, the complaint alleged that the defendants created the allegedly dangerous condition … . To the extent that this Court’s case law conflicts with the burden-shifting standard set forth in Groninger or Yarborough [Yarborough v City of New York, 10 NY3d at 728; …Groninger v Village of Mamaroneck, 17 NY3d 125], it should no longer be followed … . * * *

Applying the correct standard here, the City sustained its initial burden on that branch of its motion which was for summary judgment dismissing the first cause of action. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City affirmatively created the allegedly dangerous condition. The expert affidavit proffered by the plaintiff was not supported by the record and, thus, was speculative and conclusory, and insufficient to raise a triable issue of fact … . Under the circumstances, those branches of the City’s motion which were for summary judgment dismissing the first cause of action and all cross claims insofar as asserted against it should have been granted. Smith v City of New York, 2022 NY Slip Op 05226, Second Dept 9-21-22

Practice Point: The Second Department clarified the burdens of proof at the summary judgment stage where a plaintiff alleges injury by a defective condition on NYC property. If the city demonstrates it did not have written notice of the condition, to survive summary judgment, the plaintiff must come forward with sufficient admissible evidence an exception to the written-notice requirement applies, even where, as in this case, the complaint alleges no exception is applicable. Case law in the Second Department to the contrary should no longer be followed.

 

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RETROACTIVE IMPOSTION OF THE SUPPLEMENTAL SEX OFFENDER VICTIM FEE DOES NOT VIOLATE THE EX POST FACTO CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the retroactive imposition of the supplemental sex offender victim fee did not violate the Ex Post Facto Clause of the US Constitution. The fee was deemed to have a revenue-generating purpose, not a punitive purpose, and was not so punitive in effect as to negate the revenue-generating purpose. The court noted two two decisions (People v Bradshaw, 76 AD3d 566, People v Diggs, 73 AD3d 1210).should no longer be followed:

… [A] review of the legislative history of the 2004 amendment pursuant to which the supplemental sex offender victim fee was added to Penal Law § 60.35, reveals that it was part of an act entitled “Appropriations-Budgets,” that enacted “into law major components of legislation which are necessary to implement the state fiscal plan for the 2004-2005 state fiscal year” … . …

Next, we proceed to the second step of the inquiry, and consider whether the statute is punitive in effect … . In so doing, we consider the following factors articulated in Kennedy v Mendoza-Martinez (372 US 144): “[1] whether the sanction involved an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned” … . People v Bradshaw, 2022 NY Slip Op 05216, Second Dept 9-21-22

Practice Point: Retroactive imposition of the supplemental sex offender victim fee does not violate the Ex Post Facto clause. The purpose of the fee is to generate revenue, not to punish. The fee is not so punitive in nature as to negate its revenue-generating purpose.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILITY PLEA AND FOR FAILING TO NEGOTIATE A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea on ineffective assistance ground. Defendant alleged counsel was ineffective (1) for failing to inform him deportation would be mandatory and (2) for not negotiating a plea to an offense which would not mandate deportation:

… [T]he defendant’s contention that his counsel misadvised him as to the immigration consequences of his plea of guilty is not contradicted by the record, and is arguably supported by the representations made by counsel on the record … , which suggest that counsel did not realize that the defenses to deportation which the defendant might have raised in immigration court would be barred by his plea. In any event, the record does not support a conclusion that there is “no reasonable possibility” that the defendant’s allegations are true (CPL 440.30[4][d] …). Furthermore, the defendant’s averments, including that he has resided in the United States since he was 16 years old, and that he had a child when he entered his plea of guilty, sufficiently demonstrate the existence of a question of fact as to whether it was reasonably probable that the defendant would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea … .

… [T]he defendant was entitled to a hearing on his contention that he was denied the effective assistance of counsel based upon his counsel’s failure to attempt to negotiate a more favorable plea. The defendant’s allegation that the People offered another plea which would not have constituted an aggravated felony under federal immigration law demonstrated “a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences” … . People v Alexander, 2022 NY Slip Op 05215, Second Dept 9-21-22

Practice Point: Here defendant was entitled to a hearing on whether his attorney was ineffective for (1) failing to inform him deportation was mandatory for the offense to which he pled guilty and (2) failing to negotiate a plea to an offense which did not mandate deportation.

 

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WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes:

We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that “neither can be said to have physical custody of the children for a majority of the time” … . In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes … . * * *

.. [W]hile counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time … , the reality of the situation must also be considered where there is a closer division of parenting time. * * *

… [T]his is a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” … . Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” … . Matter of Smisek v DeSantis, 2022 NY Slip Op 05210, Second Dept 9-21-22

Practice Point: In a matter of first impression in the Second Department. the appellate court determined that where neither parent has custody of the children for a majority of the time, the parent with the greater resources should be deemed the noncustodial parent for child support purposes.

 

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DEFENDANT DID NOT ADEQUATELY EXPLAIN HER FAILURE TO RECEIVE THE SUMMONS AND COMPLAINT WHICH WERE MAILED TWICE; THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED; STRONG DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined defendant’s motion to vacate the default judgment should not have been granted. Defendant, Cupid, alleged she was on vacation and did not learn of the action until the motion for a default judgment. The Second Department concluded Cupid may have adequately explained why she did not see the summons and complaint affixed to her door, but  failed to explain why she did not receive the summons and complaint by mail:

Cupid claimed that her denial of receipt was not bare and conclusory, based upon evidence that she was away on vacation when the summons and complaint were left at her door pursuant to CPLR 308(4). However, even assuming that that explanation was sufficient for her alleged failure to receive the summons and complaint left at her door, Cupid did not explain why she did not receive notice by mail—which was effected twice. The bare conclusory denial of receipt was insufficient to establish a reasonable excuse for the default, or lack of notice of the action … . In light of that determination, it is not necessary to determine whether Cupid demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 5015(a)(1) or 317 … . Gray v Goodluck-Hedge, 2022 NY Slip Op 05204, Second Dept 9-21-22

Practice Point: Conclusory allegations the summons and complaint were not received by the defendant will not support the vacation of a default judgment. Here defendant may have explained why she did not see the summons and complaint affixed to her door, but failed to address the fact that the summons and complaint were mailed to her twice.

 

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THE TWO-JUSTICE DISSENT DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE ORDER DENYING SUMMARY JUDGMENT DID NOT NECESSARILY AFFECT THE FINAL JUDGMENT (CT APP).

The Court of Appeals, dismissing the appeal, in a brief memorandum decision, held that the two-justice dissent (which would normally require review by the Court of Appeals) did not present a reviewable question of law:

… [A]ppeal dismissed, with costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law which would be reviewable by the Court of Appeals (see CPLR 5601 [a]; 5501 [a] [1]). The dissent was predicated on an order denying partial summary judgment that did not necessarily affect the judgment from which the appeal was taken (see Bonczar v American Multi-Cinema, Inc., 38 NY3d 1023 [2022]). Shaw v City of Rochester, 2022 NY Slip Op 05197, Ct App  9-15-22

Below is the summary of Bonczar v American Multi-Cinema, Ins. (cited by the Court of Appeals in Shaw, supra):

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

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