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PLAINTIFF SUFFICIENTLY ALLEGED CAUSES OF ACTION FOR EMPLOYMENT DISMCRIMINATION BASED ON NATIONAL ORIGIN (YEMENI), HOSTILE WORK ENVIRONMENT, AND RETALIATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff stated claims for (1) employment discrimination on the basis of national origin )Yemeni), (2) hostile work environment, and (3) retaliation:

[Plaintiff’s] assertion that he was denied a promotion to sergeant on at least two occasions adequately supports … his claim [for discrimination on the basis of national origin] …  . … [H]is allegations that a coworker made derogatory remarks about Yemenis in the presence of his supervisors, that such remarks were ignored or condoned, and that non-Yemeni campus peace officers, who were less qualified than he, were promoted to the sergeant position, supports the fourth element of his claim, i.e. that the adverse action occurred under circumstances giving rise to an inference of discrimination … . …

Plaintiff has also stated a cause of action for hostile work environment, as his coworker’s multiple derogatory remarks about Yemenis, sometimes made in the presence of plaintiff’s supervisors, along with the allegedly unfounded write-ups, unfavorable assignments, and denial of a promotion, were sufficiently severe and pervasive to support that cause of action … . Plaintiff also alleges that defendants knew about the comments and failed to take appropriate action … .

Plaintiff has sufficiently alleged retaliation by showing that: (1) he engaged in protected activity in December 2016 when he filed a complaint stating that his supervisor was discriminating against him, (2) defendants were aware that he participated in such activity, (3) he was denied a promotion in February and May 2017, and (4) there is a causal connection between the protected activity and the adverse action … . Alshami v City Univ. of N.Y., 2022 NY Slip Op 02053, First Dept 3-24-22

Practice Point: This decision describes the allegations of employment discrimination (Human Rights Law) for (1) discrimination on the basis of national origin (Yemeni), (2) hostile work environment, and (3) retaliation which are sufficient to survive a motion to dismiss.

 

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THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, vacating defendant’s conviction with leave to resubmit, determined the indictment should not have been amended at the end of the trial to charge defendant with assault third and attempted assault third, instead of assault second and attempted assault second as originally charged in the indictment. The indictment did not allege the use of a deadly weapon or dangerous instrument. The last minute amendment was an effort to correct that charging flaw. However the People’s theory, before the grand jury and at trial, was defendant used a PVC pipe as a deadly weapon or a dangerous instrument. But, because of the amendment, the jury was not asked to consider the deadly weapon or dangerous instrument element:

An indictment may be amended to correct “matters of form, time, place, names of persons and the like” (CPL 200.70[1]). An amendment must not “change the theory or theories of the prosecution as reflected in the evidence before the grand jury . . . or otherwise tend to prejudice the defendant on the merits” (CPL 200.70[1]). …

… [N]otice could not have been given, because the indictment’s deficiency was not discovered until one day before the trial concluded. This unorthodox correction is not the kind of procedure sanctioned under CPL 200.70 or 300.50. The amendment was therefore not a mere correction of a “misnomer” of the offense in the accusatory clauses of the indictment … . …

… [D]efendant was prejudiced by the amendment. The People’s theory before the grand jury was that Bari’s injuries were caused by the use of a dangerous instrument, i.e., the bike rental sign. The prosecutor in her opening statement made references to the bike rental sign. She did so in her summation even after the court deleted the original second-degree hate crimes and replaced them with third-degree hate crimes. Further, on the People’s case, the prosecutor elicited testimony from Bari to support this theory. Thus, the People tried the case from inception to conclusion, and defendant mounted a defense, on the theory that a deadly weapon or a dangerous instrument was used in the commission of the hate crimes. On the last day of the trial, however, the court amended the indictment and charged the jury with variations of third-degree assault, which do not require proof of the existence of a deadly weapon or a dangerous instrument. Thus, after hearing evidence of a dangerous instrument throughout the trial, the jury received instructions that did not require it to find that the People had proven the existence of a dangerous instrument beyond a reasonable doubt to convict defendant of the third-degree hate crimes or the third-degree assault. This result was an impermissible change in the theory of the prosecution. People v Winston, 2022 NY Slip Op 02080, First Dept 3-24-22

Practice Point: Here the indictment was flawed because it charged assault second but did not allege use of a deadly weapon or a dangerous instrument. The People’s theory at trial was that defendant used a PVC pipe as a deadly weapon or a dangerous instrument. A day before the end of the trial, the judge amended the indictment to charge assault third. The amendment was improper and prejudiced the defendant.

 

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A NOTE EXECUTED BY ONE TENANT BY ENTIRETY AND SECURED BY REAL PROPERTY OWNED BY BOTH TENANTS BY THE ENTIRETY, DONE WITHOUT THE OTHER TENANT BY THE ENTIRETY’S CONSENT, DOES NOT ENCUMBER THE OTHER TENANT BY THE ENTIRETY’S INTEREST IN THE REAL PROPERTY (SECOND DEPT).

The Second Department determined the note executed by Gladys Pajuelo and secured by a mortgage on property owned by Gladys and Celso Pajuelo as tenants by the entirety, done without Celso’s consent, did not encumber Celso’s interest in the property. Therefore the bank in this foreclosure action did not have an equitable mortgage on Celso’s interest:

Supreme Court properly denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Celso F. Pajuelo, declaring that the plaintiff has an equitable mortgage on Celso F. Pajuelo’s interest in the property. Where spouses own property as tenants by the entirety, a conveyance by one spouse, to which the other has not consented, cannot bind the entire fee … . Here, the mortgage executed by Gladys F. Pajuelo did not encumber Celso F. Pajuelo’s interest in the property, and the plaintiff failed to submit evidence to demonstrate its entitlement to an equitable mortgage against Celso F. Pajuelo’s interest in the property … . Nationstar Mtge., LLC v Pajuelo, 2022 NY Slip Op 02006, Second Dept 3-23-22

Practice Point: Where real property is owned by tenants by the entirety, and one of the tenants by the entirety, without the consent of the other, executes a note secured by the real property, the other tenant by the entirety’s interest is not encumbered.

 

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THE MATERIAL MISREPRESENTATION THAT THERE WAS NO SWIMMING POOL ON THE PROPERTY JUSTIFIED THE DISCLAIMER OF COVERAGE FOR FIRE DAMAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer (Union Mutual) was entitled to rescission of the insurance policy based upon a material misrepresentation made by the plaintiff (the insured). The plaintiff-insured represented that there was no swimming pool on the property. After the property was damaged by fire, the insurer learned there was a swimming pool on the property and disclaimed coverage:

… Union Mutual established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff made misrepresentations on his application for insurance, and that it would not have issued the 2017 policy and the 2018 policy had the plaintiff disclosed that there was a swimming pool on the property … .. Union Mutual submitted with its motion for summary judgment an affidavit from its underwriter, along with Union Mutual’s Underwriting Guidelines for its New York Landlord/Tenant Property and General Liability Package Program, which provide that swimming pools are an unacceptable risk, and if a potential insured answered “yes” to the question on the application asking if there is a swimming pool on the property, no policy of insurance would issue. With these undisputed facts, Union Mutual demonstrated as a matter of law that the misrepresentations in the plaintiff’s applications for insurance were material. In opposition, the plaintiff failed to raise a triable issue of fact.

A material misrepresentation, even if innocent or unintentional, is sufficient to warrant rescission of an insurance policy … . Nabatov v Union Mut. Fire Ins. Co., 2022 NY Slip Op 02005, Second Dept 3-23-22

Practice Point: Here the insured represented to the insurer that there was no swimming pool on the property. After a fire the insurer learned there was a swimming pool on the property. The insurer demonstrated it would not have issued the policy if it had been aware of the swimming pool. The misrepresentation was therefore “material” and justified the denial of coverage for the fire.

 

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THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the parking-lot-owner’s (RGP’s) motion for summary judgment in this slip and fall case should not have been granted under the storm-in-progress rule. The meteorologist’s affidavit was not accompanied by the records the affidavit relied upon:

… RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value … . Canciani v Stop & Shop Supermarket Co., LLC, 2022 NY Slip Op 01986, Second Dept 3-23-22

Practice Point: An affidavit submitted to prove the contents of records which are not attached has no probative value.

 

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IN THIS FORECLOSURE ACTION, THE FAILURE TO ATTACH THE RELEVANT BUSINESS RECORDS, AS WELL AS THE FAILURE TO PROVIDE PROOF OF MAILING, RENDERED THE PROOF OF COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF THE MORTGAGE INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice-of-default provisions of the mortgage in this foreclosure action:

… [T]he plaintiff failed to establish … that it complied with the notice of default provisions of the mortgage, which … required the plaintiff to send the notice by first-class mail to the subject property and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .Bank of Am., N.A. v Shirazi, 2022 NY Slip Op 01984, Second Dept 3-23-22

Practice Point: Although most foreclosure-reversals are due to the bank’s failure to demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304, here the bank failed to demonstrate compliance with the notice-of-default provisions in the mortgage document.

 

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DEFENDANTS DID NOT DEMONSTRATE ACTUAL NOTICE OF THE SUMMONS WAS NOT RECEIVED IN TIME TO DEFEND THE ACTION, AND DID NOT PROVIDE A REASONABLE EXCUSE FOR THE DEFAULT; DEFENDANTS’ MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s did not demonstrate they did not receive notice of the summons in time to defend the action, and did not demonstrate a reasonable excuse for the default. Therefore defendants’ motion to vacate the default judgment should not have been granted:

Pursuant to CPLR 317, a defaulting defendant that was “served with a summons, other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a meritorious defense … . Service on a limited liability company by delivery of the pleadings to the Secretary of State does not constitute personal delivery … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … .

The affidavit … submitted by the … defendants in support of their motion, amounted to nothing more than a mere denial of receipt of the summons and complaint … . … [T]he … defendants did not contend that the address it had on file with the Secretary of State was incorrect … .

… [T]he … defendants’ mere denial of receipt of the summons and complaint, without more, was insufficient to demonstrate a reasonable excuse for its default pursuant to CPLR 5015(a)(1) … .Andrews v Wartburg Receiver, LLC, 2022 NY Slip Op 01980, Second Dept 2-23-22

Practice Point: A denial of the receipt of the summons and complaint, without more, does not demonstrate actual notice of the summons was not received in time to defend, and does not demonstrate a reasonable excuse for a defaulting.

 

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ALTHOUGH NONPARTY JP MORGAN DID NOT APPEAR IN THE UNDERLYING FORECLOSURE, IT COULD RECOVER SURPLUS FUNDS BASED UPON DEFENDANTS’ DEFAULT ON A CREDIT-LINE LOAN SECURED BY THE PROPERTY; JP MORGAN’S ACTION WAS NOT TIME-BARRED BECAUSE THE CREDIT-LINE DEBT WAS NEVER UNEQUIVOCALLY ACCELERATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined nonparty JP Morgan was entitled to the surplus funds remaining after a foreclosure sale based upon the defendants’ (Breuers’) default on a credit-line loan secured by the property. The defendants’ argument that the credit-line action was time-barred was rejected because the debt was never accelerated. Pursuant to RPAPL 1361, JP Morgan did not have to appear in the underlying foreclosure action to preserve a claim to the surplus funds:

Where, as here, “the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder’s election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation” … .

… [T]he Breuers failed to demonstrate … that the statute of limitations began to run on JP Morgan’s entire claim at the time of the Breuers’ initial default in 2010. A letter introduced into evidence during the hearing, in which JP Morgan informed the Breuers of its intent to accelerate the maturity of the loan and to commence foreclosure proceedings if the Breuers’ default was not cured, was not sufficient to accelerate the debt, because it did not reflect a “clear and unequivocal” election to accelerate … . …

… [T]he applicable statute which governs proceedings to recover surplus funds from a foreclosure sale, RPAPL 1361, did not require JP Morgan to appear in the action to foreclose the primary mortgage prior to the entry of the judgment of foreclosure and sale, in order to preserve its claim to surplus funds … . Wells Fargo Bank, N.A. v Breuer, 2022 NY Slip Op 02037, Second Dept 3-23-22

Practice Point: Although nonparty JP Morgan did not appear in the underlying foreclosure proceedings, it was entitled to the surplus funds remaining after the foreclosure sale based upon defendants’ default on a credit-line loan secured by the property.

 

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IF THE 2008 FORECLOSURE ACTION COMMENCED BY AEGIS WAS VALID, THE INSTANT FORECLOSURE ACTION BY A DIFFERENT BANK WOULD BE TIME-BARRED; PLAINTIFF BANK RAISED A QUESTION OF FACT BY SUBMITTING EVIDENCE THAT AEGIS DID NOT POSSESS THE NOTE AND MORTGAGE AT THE TIME THE 2008 ACTION WAS COMMENCED AND THEREFORE DID NOT HAVE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact whether Aegis, the company which started a foreclosure action in 2008, had standing to commence that action. Therefore there was a question of fact whether the Aegis action accelerated the debt and started the running of the six-year statute of limitations:

… [P]laintiff proffered the affidavit of Sherry Benight, a document control officer for Select Portfolio Servicing, Inc. (hereinafter SPS), the servicer and attorney-in-fact for the plaintiff. Based upon her review of SPS’s business records, Benight averred that pursuant to a pooling and servicing agreement (hereinafter PSA), dated January 1, 2006, the original note was transferred to SPS, in its capacity as servicer and attorney-in-fact, on May 14, 2008, and SPS has remained in physical possession of the note since that date. Benight attached to her affidavit copies of the PSA, and a mortgage loan schedule listing the subject loan, note, and mortgage. This evidence was sufficient to raise triable issues of fact as to whether Aegis lacked standing to commence the prior action, and whether this action is time-barred … . U.S. Bank N..A. v Nail, 2022 NY Slip Op 02034, Second Dept 3-23-22

Practice Point: If a bank did not possess the note and mortgage at the time it commenced a foreclosure action, the action is a nullity.

 

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THE COMPANY WHICH STAFFED THE HOSPITAL EMERGENCY ROOM DID NOT DEMONSTRATE THE PHYSICIANS WHO TREATED PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION WERE INDEPENDENT CONTRACTORS, AS OPPOSED TO EMPLOYEES FOR WHOM THE COMPANY WOULD BE VICARIOUSLY LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant NES, which staffed the hospital emergency room, should not have been granted summary judgment in this medical malpractice action. NES alleged the emergency room physicians who treated plaintiff (Perez) were independent contractors, not employees, and therefore NES was not vicariously liable for the acts or omissions of the physicians:

… [T]he evidence submitted in support of NES’s motion did not eliminate all triable issues of fact as to whether the emergency room physicians who treated Perez were independent contractors … . Although the physician agreement between NES and one of the physicians who treated Perez designated the physician an independent contractor, among other things, NES’s contract with Lutheran [the hospital] raises triable issues of fact regarding NES’s involvement in the training of the physicians with whom it contracted and the extent of NES’s obligation to participate in quality assurance and peer review activities and implement quality improvement plans … . Additionally, NES failed to submit any evidence regarding how the physicians with whom it contracted were paid … . Perez v NES Med. Servs. of N.Y., P.C., 2022 NY Slip Op 02031, Second Dept 3-23-22

Practice Point: In this medical malpractice action, the plaintiff sued the company which staffed the emergency room under a contract with the hospital. The staffing company moved for summary judgment arguing the treating physicians were independent contractors, not employees, and, therefore, the company was not vicariously liable for the acts or omissions of the physicians. The motion should not have been granted. The decision lays out the criteria for the independent-contractor versus employee analysis.

 

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