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ALTHOUGH THE FIRST FORECLOSURE ACTION COMMENCED IN 2009 WAS ADMINISTRATIVELY DISMISSED, IT WAS NEVER ABANDONED PURSANT TO CPLR 3216; THEREFORE THE STATUTE OF LIMITATIONS WAS NOT TRIGGERED AND THE MOTION TO RESTORE THE 2009 ACTION TO THE CALENDAR IN 2018, AFTER THE SECOND (2015) FORECLOSURE ACTION WAS DISMISSED AS TIME-BARRED, SHOULD HAVE BEEN GRANTED; TWO-JUSTICE DISSENT (SECOND DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the first foreclosure action (commenced in 2009), which was “administratively dismissed,” was not abandoned because the criteria in CPLR 3216 were not met. Therefore, the administrative dismissal did not trigger the statute of limitations and the motion to restore that action to the calendar (after the second foreclosure action commenced 2015 was dismissed as time-barred) should have been granted:

… [T]he conditional order of dismissal, which, in effect, served as a 90-day notice pursuant to CPLR 3216, was defective in that it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute (see id. § 3216[b][3] …). * * *

We reject the defendant’s contention that the plaintiff effectively abandoned the instant action by commencing the 2015 action. * * *

… [T]he plaintiff was not required to move to restore the instant action to the calendar within any specified time frame … . “[A] motion pursuant to CPLR 2221(a) to vacate an order is not subject to any specific time limitation” … . The marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one … . Bank of Am., N.A. v Ali, 2022 NY Slip Op 00838, Second Dept 2-9-22

 

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A PHOTOGRAPH DOWNLOADED FROM FACEBOOK ALLEGEDLY SHOWING DEFENDANT WEARING CLOTHES SIMILAR TO THE CLOTHES WORN BY THE PERPETRATOR SHOULD NOT HAVE BEEN ADMIITTED IN EVIDENCE; THE PHOTOGRAPH WAS NOT AUTHENTICATED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that a photograph downloaded from Facebook allegedly showing the defendant wearing clothes similar to those worn by the perpetrator was not authenticated and should not have been admitted in evidence:

In order to admit a photograph into evidence, it must be authenticated by proof that it is genuine and that it has not been tampered with … . Here, the People failed to properly authenticate the photograph. The People’s only authentication evidence consisted of the testimony of a police witness who searched for the Facebook profile 1½ years after the crime. They did not proffer any evidence or testimony demonstrating that the photograph was “a fair and accurate representation of the scene depicted or that it was unaltered” … . To the contrary, the police witness testified that he did not know whether the photograph had been altered. Furthermore, the People did not present any evidence “to establish that the web page belonged to, and was controlled by, [the] defendant” or any evidence as to when the photograph was created or posted … .

… “[A]dmission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law” … . People v Mayo, 2022 NY Slip Op 00881, Second Dept 2-9-22

 

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THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an enhanced sentence because there was no showing that defendant had violated any condition of the plea agreement:

It was undisputed that the defendant successfully completed the 90-day in-patient residential program, which was the only specific program identified by the court at the plea proceeding. Indeed, the court’s actual instruction to the defendant at the plea proceeding was to “complete the . . . residential program.” The court did not indicate at the plea proceeding that the defendant would be subject to continuous and open-ended treatment, or that a single positive drug test at any time would constitute a violation of the plea agreement. While the court referenced “the conditions of the program” at the beginning of the plea proceeding, there was no subsequent reference in the record to these conditions, and no allegation that the defendant breached any of them. Although the court could have directed the defendant to successfully engage in ongoing treatment up until the date of the sentence, it did not explicitly impose such a condition here … . The court “never stated” that the defendant was required to continue his treatment beyond the residential program identified on the record … , and “only the failure to comply with explicit conditions can form the basis of a violation” … . People v Martinez, 2022 NY Slip Op 00880, Second Dept 2-9-22

 

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ALTHOUGH THE ARRESTING OFFICER OBSERVED SOME INTERACTIONS WITH OTHERS BY THE DEFENDANT AT A LOCATION KNOWN FOR DRUG ACTIVITY, THE OFFICER DID NOT SEE ANY PROPERTY OR CURRENCY CHANGE HANDS AND DID NOT FIND ANY DRUGS OR CURRENCY ON THE DEFENDANT OR THE TWO MEN WITH HIM ON THE STREET; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST; THE HEROIN SUBSEQUENTLY FOUND IN THE POLICE CAR AND DEFENDANT’S STATEMENT HE HAD “DITCHED” THE DRUGS IN THE CAR SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress the heroin found in back seat of a police car and his statement that he had “ditched” the drugs in the car should have been suppressed because the arresting officer did not have probable cause at the time of defendant’s arrest. The officer had observed defendant engage in what appeared to the officer to be drug transactions on the street. But when the officer approached the defendant and two others on the street no drugs or currency were found. The defendant had been handcuffed and was subsequently arrested for loitering:

Detective Petrucci did not have probable cause to reasonably believe that the defendant was committing, or had committed, a crime, at any point prior to the defendant’s arrest (see id.). Detective Petrucci testified that he arrested the defendant on the basis of the defendant’s purported commission of loitering in the first degree, which is defined as “loiter[ing] or remain[ing] in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance” (Penal Law § 240.36). However, there was no testimony at the suppression hearing that the defendant had “remained” in any place with the other individuals with whom he interacted. The interactions between the defendant and the other individuals were described at the hearing as “quick,” “fluid,” and lasting approximately one minute. * * *

Detective Petrucci did not observe any physical property or currency being handled by the defendant or exchanged between the defendant and either Flores or Mugaburu prior to approaching the defendant, and did not otherwise recover any drugs or currency from the defendant, Flores, or Mugaburu prior to the defendant’s arrest. Contrary to the People’s contention, the observations that Detective Petrucci did make—several brief, nondescript interactions involving the defendant at an address known to the police for past drug activity—were not a sufficient basis for Detective Petrucci to form a reasonable belief that a narcotics offense was occurring or had been committed. People v Jones, 2022 NY Slip Op 00878, Second Dept 2-9-22

 

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IN THIS CASE INVOLVING A FATAL CAR ACCIDENT WHEN DEFENDANT WAS APPARENTLY “RACING” THE OTHER DRIVER, THE EVIDENCE PRESENTED TO THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT THE MANSLAUGHTER SECOND DEGREE CHARGE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing County Court’s dismissal of the indictment, determined the evidence of manslaughter second degree presented to the grand jury was legally sufficient:

… [V]iewing the evidence in the light most favorable to the People, we find that it was legally sufficient to support the charges of manslaughter in the second degree … . The evidence before the grand jury, if accepted as true, established that in addition to traveling at the excessive rate of speed of approximately 80 to 90 miles per hour, the defendant’s vehicle and the Porsche were weaving in and out of traffic, without braking or signaling. As the Porsche and the defendant’s vehicle approached a sharp bend in the roadway, they were traveling side-by-side, with the Porsche in the left lane. The defendant’s vehicle struck the Porsche while attempting to enter the left lane, which caused the Porsche to hit the left hand curb of the roadway and fly “at least a couple of hundred feet” in the air before coming to rest “at the bottom of the highway.” Two passengers riding in the Porsche were killed. Although the defendant told a police sergeant at the scene that he did not see the Porsche when he attempted to maneuver his vehicle into the left lane and believed that the Porsche was in his blind spot, he also stated that he was “kind of racing” with the Porsche … . People v Castro, 2022 NY Slip Op 00874, Second Dept 2-9-22

 

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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IN THIS FORECLOSURE ACTION, DEFENDANT DID NOT WAIVE THE LACK OF JURISDICTION DEFENSE BY PARTICIPATING IN THE MANDATORY SETTLEMENT CONFERENCE AND WAS ENTITLED TO A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action did not waive the lack of jurisdiction defense and demonstrated entitlement to a hearing on whether she was properly served:

… [B]y participating in the mandatory settlement foreclosure conference and subsequently contacting the plaintiff for settlement purposes, the defendant did not demonstrate a clear intent to participate in the lawsuit on the merits, and therefore she did not formally or informally appear in the action … . …

… [D]efendant sufficiently rebutted the presumption of proper service. The defendant submitted her own sufficiently factually detailed sworn affidavit in which she, inter alia, denied receipt of service, denied residing at the subject address at the time service allegedly was made, and averred that she had not lived there since September 2011 and that she had moved to Georgia in November 2013. Under these circumstances, a hearing to determine whether the defendant was properly served pursuant to CPLR 308(2) was required … . Nationstar Mtge., LLC v Stroman, 2022 NY Slip Op 00869, Second Dept 2-9-22

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments:

… [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the Supreme Court failed to ascertain … and whether or not he was and is able to comply with his child support obligation under the judgment of divorce … . Under such circumstances, the court erred in granting the defendant’s petition to modify the child support provisions of the judgment of divorce to the extent of directing him to pay $25 per month in child support retroactive to July 10, 2018, and in denying that branch of the plaintiff’s motion which was to adjudge the defendant in civil contempt for failure to pay child support without conducting a hearing … . Zeidman v Zeidman, 2022 NY Slip Op 00906, Second Dept 2-9-22

 

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ALTHOUGH THE INSURER DID NOT RECEIVE NOTICE OF THE CLAIM UNTIL 23 MONTHS AFTER THE CAR ACCIDENT, IT WAS NOT PREJUDICED BY THE DELAY AND DID NOT COMMENCE A TIMELY INVESTIGATION OF THE CLAIM; THE DISCLAIMER OF COVERAGE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer (Utica) did not make a timely disclaimer of coverage in this car accident case. Although the insurer did not receive notice of the claim from the insured (Kassie) until 23 months after the accident, it was not prejudiced by that delay and failed to promptly investigate the claim when notice was received:

Utica first received notice of the SUM claim on May 5, 2017, just less than 23 months after the subject accident. Utica’s representative testified at the hearing that, despite the apparent untimeliness of this notice, Utica did not disclaim coverage upon receiving the May 5, 2017 letter because it did not at that time face any specific deadline to take action, so it had not yet been prejudiced by the untimely notice. However, on June 26, 2017, Utica received a letter from Kassie requesting consent to settle with the tortfeasor. Utica was required to respond to the letter requesting consent to settle within 30 days … . Utica’s representative testified at the hearing that it disclaimed coverage after receiving the June 26, 2017 letter, since at that point it was prejudiced by the untimeliness of the notice of claim because it could not complete its investigation before the deadline to respond to the June 26, 2017 letter.

However, Utica failed to present any evidence that upon receipt of the notice of claim it began fulfilling its “duty to promptly and diligently investigate the claim” … . Thus, Utica cannot reasonably claim that it was prejudiced by the untimely notice of claim based on its receipt over seven weeks later of the request from Kassie for consent to settle. Notably, Utica did not claim that it would have been unable to adequately investigate the SUM claim in time to respond to the request for consent to settle even if it had promptly commenced such an investigation upon receiving the notice of claim. Matter of Utica Natl. Ins. of Tex v Kassie, 2022 NY Slip Op 00867, Second Dept 2-9-22​

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate the defendants’ default in this foreclosure action:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form”… . Although Smith [plaintiff’s vice president] averred that she had personal knowledge of the plaintiff’s record-keeping practices and procedures, Smith’s purported knowledge of the alleged default was based upon her review of unidentified business records, which she failed to attach to her affidavit … . Thus, Smith’s assertions regarding the defendants’ alleged default constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, N.A. v Gross, 2022 NY Slip Op 00902, Second Dept 2-9-22

 

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