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THE BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate strict compliance with the notice requirements of RPAPL 1304. The bank’s motion for summary judgment should not have been granted:

No evidence that the RPAPL 1304 notice was mailed by certified mail to the defendant at the subject property was provided, and the affidavit of a document control officer of the plaintiff’s loan servicer submitted by the plaintiff failed to describe the procedures in place designed to ensure that RPAPL 1304 notices are properly addressed and mailed by both certified and first-class mail … . Since the plaintiff failed to provide evidence of actual mailing of the RPAPL 1304 notice by certified mail to the defendant at the subject property, “or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure,” the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Bank of N.Y. Mellon v Sae Young Min, 2022 NY Slip Op 00393, Second Dept 1-26-22

 

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THE COMPLAINT ADEQUATELY ALLEGED DEFENDANT VIOLATED THE CIGARETTE MARKETING STANDARDS ACT (CMSA) BY OFFERING REBATES WHICH EFFECTIVELY LOWERED THE PRICE OF CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for the violation of the Cigarette Marketing Standards Act (CMSA) by offering rebates which effectively lowered the price of cigarettes:

… [T]he CMSA and its regulations make clear that rebates which directly or indirectly serve to reduce prices below legal minimums constitute violations of the prohibition on offers to sell or sales of cigarettes at less than minimum prices (see Tax Law § 484[a][1]). The Supreme Court therefore erred in directing dismissal of the complaint on the basis that the alleged conduct involved the provision of rebates. Contrary to [defendant’s] contention, the complaint sufficiently pleaded that these rebates resulted in prices below the legal minimum (see 20 NYCRR 84.1[b][2]).

The Supreme Court also erred in determining that the good faith “meeting competition” exception to the CMSA applied as a matter of law. The exception permits an agent or wholesale dealer to sell cigarettes “at a price made in good faith to meet the price of a competitor who is rendering the same type of services and is selling the same article at cost to him [or her]” … . …

… [T]he complaint sufficiently pleads that [defendant] did not offer the rebates in good faith to meet the prices of a competitor selling cigarettes at its cost … . The complaint alleges that [defndant] lowered its prices to beat, not meet, legal competition. Moreover, it alleges that [defendant’s] sales manager was aware that such rebates violated the CMSA … . Amsterdam Tobacco Co., Inc. v Harold Levinson Assoc., LLC, 2022 NY Slip Op 00390, Second Dept 1-26-22

 

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THE ONE YEAR TIME-LIMIT IN CPLR 3404 FOR A MOTION TO RESTORE AN ACTION TO THE CALENDAR DID NOT APPLY TO THIS CASE WHERE THE ACTION WAS ADMINISTRATIVELY DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined CPLR 3404, which requires a motion to restore an action to the calendar be made within one year, did not apply here where the action was administratively dismissed:

The plaintiffs commenced this action, inter alia, for a judgment declaring a certain deed null and void. In November 2017, the plaintiffs moved, among other things, to extend their time to file a note of issue. Subsequently, this action was administratively dismissed on December 26, 2017, for failure to file a note of issue, and the plaintiffs’ motion was “marked off” the calendar on January 10, 2018. On or about January 31, 2019, the plaintiffs moved, inter alia, to restore the action to the active calendar. In an order dated February 26, 2019, the Supreme Court denied the plaintiffs’ motion on the ground that they had failed to move to restore the action within the one-year time limit of CPLR 3404. The plaintiffs appeal.

CPLR 3404 does not apply to this pre-note of issue action … . Since the action could not properly be marked off pursuant to CPLR 3404, the plaintiffs were “not required to move to restore within any specified time frame” … . Further, there was neither a 90-day demand pursuant to CPLR 3216 … , nor an order dismissing the action pursuant to 22 NYCRR 202.27 … . Wynn v Wynn-Wright, 2022 NY Slip Op 00466, Second Dept 1-26-22

 

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SLIGHTLY DIFFERENT SIGNATURES ON THE NOTE AND DEFENDANTS’ DENIAL OF RECEIPT OF THE RPAPL 1304 NOTICE DID NOT RAISE QUESTIONS OF FACT; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should have been granted. Slightly different signatures on the note and defendants’ denial of receipt of the RPAPL 1304 notice did not raise questions of fact:

… [U]nder the circumstances of this case, the fact that the plaintiff submitted a copy of the consolidated note that contained slightly different signatures of the defendants than the copy appended to the CEMA [consolidation, extension, and modification agreement], did not provide a sufficient basis to deny the plaintiff’s motion … . The defendants do not dispute that they signed the consolidated notes, including the one under which the plaintiff wished to proceed, nor do they claim that there were any differences in the terms of the notes … . Furthermore, the defendants’ mere denial of receipt of the RPAPL 1304 notices was insufficient to raise a triable issue of fact warranting denial of the motion … . Wilmington Sav. Fund Socy. v Theagene, 2022 NY Slip Op 00465, Second Dept 1-26-22

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 in this foreclosure action:

Although the envelope has “Wells Fargo Home Mortgage” printed on it, there is no visible sender address. The envelope has the name “Shields” [defendant] hand-written in the top right corner. The envelope is further marked “return to sender illegible unable to forward” by the United States Post Office. The plaintiff also provided a copy of a certified mail return receipt card addressed to both of the defendants at the subject property’s address. This card is neither signed by a recipient nor postmarked. In addition, the plaintiff provided a certified manifest demonstrating proof of filing pursuant to RPAPL 1306, which only refers to a purported mailing to Shields. Therefore, the plaintiff failed to eliminate questions of fact as to whether notices were sent to both defendants in compliance with RPAPL 1304, and whether the notices were received. Wells Fargo Bank, N.A. v Shields, 2022 NY Slip Op 00462, Second Dept 1-26-22

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED BECAUSE IT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED (HEARSAY) (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed in this foreclosure action because the computations in the report were based on business records which were not produced:

… “[T]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records” … . We therefore reverse the order and judgment of foreclosure and sale and remit the matter to the Supreme Court … for a new report computing the amount due, to be followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter … . Wells Fargo Bank, N.A. v Dhanani, 2022 NY Slip Op 00460, Second Dept 1-26-22

 

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DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE BANK POSSESSED THE CORRECT VERSION OF THE NOTE, AND, THEREFORE, WHETHER THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action raised a question of fact whether the bank possessed the relevant note, and therefore had standing, when the action was commenced:

“Pursuant to article 3 of the Uniform Commercial Code, a note can be endorsed, or signed over, to a new owner” … . A note can also be endorsed in blank, naming no specific payee, which makes it a bearer instrument, so that any party that possesses it has the legal authority to enforce it (see UCC 3-202[1]; 3-204[2] …). …

The version of the note that contained the special endorsement by GreenPoint to GMAC …, which was submitted in the 2008 foreclosure action, was not consistent with the endorsement in blank by GreenPoint. If the note was specially endorsed to GMAC, it would subsequently had to have been specially endorsed to the plaintiff or endorsed in blank by GMAC in order for the plaintiff to enforce it (see UCC 3-202[1]; 3-204[1] … ). Thus, the defendants raised a triable issue of fact as to whether the plaintiff possessed the legal authority to enforce the note at the time this action was commenced … . U.S. Bank N.A. v Rozo-Castellanos, 2022 NY Slip Op 00457, Second Dept 1-26-22

 

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DEFENDANT HAD BEEN RELEASED FOR 12 YEARS WITHOUT REOFFENDING AT THE TIME OF THE SORA HEARING; DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE (SECOND DEPT).

The Second Department, reversing Supreme Court’s SORA risk-level assessment and designating defendant a level one sex offender, the fact that defendant had not reoffended between 2004 and 2018 was a factor warranting a downward departure:

A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … . …

… [T]he defendant committed a sex offense in Georgia in 2004. In the time between that crime and the SORA hearing, which was held in 2018, the defendant was at liberty for approximately 12 years without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI [risk assessment instrument] overstated the defendant’s risk of reoffense. People v Addison, 2022 NY Slip Op 00445, Second Dept 1-26-22

 

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THE COMPLAINANT’S IDENTIFICATION OF DEFENDANT FROM A SINGLE PHOTOGRAPH WAS UNDULY SUGGESTIVE; PROOF OF SERIOUS INJURY RE: THE ASSAULT CHARGE WAS LEGALLY INSUFFICIENT; ALTHOUGH THE LEGAL SUFFICIENCY ARGUMENT WAS NOT PRESERVED IT WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over an extensive partial dissent, determined: (1) the defendant was entitled to a new trial on the burglary charge because the identification procedure was unduly suggestive; and (2) the serious injury element of the assault charge was not supported by legally sufficient evidence:

… [A]lthough the burglary complainant’s identification of the Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . …

… [U]pon the exercise of our interest of justice jurisdiction (see CPL 470.05[2]), we conclude that the conviction of assault in the second degree is not supported by legally sufficient evidence that the detective sustained a “physical injury” within the meaning of Penal Law § 10.00(9). …

The record did not support a finding that the detective experienced substantial pain. At the time of his discharge from the hospital, the detective assessed his pain as a “3” and was advised to take Tylenol for pain. His “quality” of pain was characterized as “aching.” Furthermore, there was no evidence as to the duration of any pain. People v Wheeler, 2022 NY Slip Op 00442, Second Dept 1-26-22

 

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THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure actions:

Where, as here, the plaintiff’s standing has been placed in issue by the defendant’s answer, the plaintiff must prove its standing as part of its prima facie showing … . “[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action” … .

Here, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, as the plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . The affidavit of the plaintiff’s employee and the copy of the note attached thereto which were submitted in support of the plaintiff’s motion for summary judgment did not clarify whether the allonge was firmly affixed to the note … . Nationstar Mtge., LLC v Calomarde, 2022 NY Slip Op 00428, Second Dept 1-26-22

 

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