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EVIDENCE DEFENDANTS DID NOT CREATE THE WATER-ON-FLOOR CONDITION IN THIS SLIP AND FALL CASE WAS FIRST PRESENTED IN REPLY PAPERS; THEREFORE DEFENDANTS DID NOT MEET THEIR BURDEN ON THAT ISSUE; ALTHOUGH THERE WAS EVIDENCE THE AREA OF THE SLIP AND FALL WAS INSPECTED AT 7:00 AT THE START OF THE EVENT AND SOMETIME THEREAFTER, THERE WAS NO SPECIFIC EVIDENCE THE AREA WAS INSPECTED CLOSE IN TIME TO THE FALL AT 8:30, NEAR THE END OF THE EVENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this water-on-floor slip and fall case should not have been granted. The defendants first addressed whether they created the dangerous conditions in their reply papers, so they did not meet their burden on that issue. In addition they did not demonstrate the lack of constructive notice of the condition because there was no evidence the area was inspected close in time to the alleged fall:

… [T]he defendants were required to demonstrate, prima facie, that they did not create the alleged wet condition … . The defendants failed to make such a showing since they argued only that they lacked actual and constructive notice of the condition. While the defendants addressed the issue of creation for the first time in their reply papers, they failed to make a prima facie showing that they or their agents did not create the alleged wet condition, as it was their obligation to address this issue in their original motion papers … . …

… [T]he defendants’ submissions in support of their motion, including the affidavit of Daniel Sullivan … were insufficient to demonstrate … that the defendants lacked constructive notice of the alleged wet condition. According to Sullivan, he was present at the school function but did not witness the injured plaintiff’s fall. Although he stated that he inspected the floor prior to the event beginning at 7:00 p.m. and at times during the event and did not see any debris or water on the floor, he also stated that the injured plaintiff fell at approximately 8:30 p.m. “near the end of the event.” Sullivan did not provide specific information as to when the area where the injured plaintiff fell was last cleaned or inspected relative to the time of the accident … . Rivera v Roman Catholic Archdiocese of N.Y., 2021 NY Slip Op 04769, Second Dept 8-25-21

 

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THE CONVICTION WAS AFFIRMED BUT A STRONG TWO-JUSTICE DISSENT ARGUED EXCESSIVE INTERVENTION BY THE JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a strong two-justice dissent. The defendant argued on appeal that defendant was deprived of a fair trial by the judge’s excessive questioning of witnesses. The issue was not preserved by objection. The majority held the judge’s questioning of witnesses did not deprive defendant of a fair trial. The dissenters disagreed in a detailed memorandum which lays out the facts of the case and the judge’s interjections:

From the dissent: … [C]ontrary to the position of my colleagues in the majority, I find that the defendant was deprived of a fair trial by the Supreme Court’s repeated and egregious questioning of witnesses. Throughout the trial, the court asked more than 200 questions of witnesses which, among other things, assisted the prosecution in eliciting significant testimony and establishing the foundation for the admissibility of evidence, characterized the testimony of witnesses, and served to undermine the defense strategy. Thus, I conclude that a new trial is warranted before a different Justice. * * *

I conclude that in this case, the defendant was deprived of a fair trial, as the trial judge engaged in a pattern of repeatedly interjecting himself into the questioning of witnesses throughout the trial. The trial judge engaged in extensive questioning of witnesses, usurped the role of the prosecutor, elicited significant testimony from the People’s witnesses, made statements summarizing and characterizing the testimony of witnesses, undermined the defense’s cross-examination of the People’s witnesses, and “generally created the impression that [he] was an advocate for the People” … . People v Parker, 2021 NY Slip Op 04766, Second Dept 8-25-21

 

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THE DEFENSE REQUEST TO PRESENT THE GRAND JURY TESTIMONY OF AN UNAVAILABLE WITNESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to present an unavailable witness’s grand jury testimony should have been granted:

The County Court committed error, however, when it denied the defendant’s request to introduce the grand jury testimony of a witness who had since become unavailable to testify at trial. “[A] defendant’s constitutional right to due process requires the admission of hearsay evidence consisting of Grand Jury testimony when the declarant has become unavailable to testify at trial, and the hearsay testimony is material, exculpatory, and has sufficient indicia of reliability” … . Here, the proffered grand jury testimony was both material and exculpatory since it consisted of eyewitness testimony that, while positively identifying the codefendant as one of the shooters at the scene of the crime, provided a description of the second shooter that was inconsistent with a description of the defendant. Moreover, a review of the grand jury testimony reveals that the prosecutor had a full and fair opportunity to examine the witness, thus satisfying the “indicia of reliability” prong of the test … , and it was uncontested at trial that the witness was unavailable. People v Johnson, 2021 NY Slip Op 04763, Second Dept 8-25-21

 

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ROBBERY FIRST REDUCED TO ROBBERY SECOND BECAUSE A THREAT TO USE A GUN IS NOT “DISPLAY” OF A GUN; “POSSESSION OF A FORGED INSTRUMENT” COUNTS VACATED BECAUSE THE WARRANTLESS SEARCH OF DEFENDANT’S WALLET WAS IMPROPER (SECOND DEPT).

The Second Department determined the robbery first conviction must be reduced to robbery second because defendant’s alleged verbal threat to use a gun was not accompanied hand movement or display of a weapon. In addition, the warrantless search of defendant’s wallet was improper and the related “possession of a forged instrument” counts were vacated:

“To sustain a conviction for robbery in the first degree (Penal Law § 160.15[4]), ‘[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display'”… . “[I]t is the ‘display’ of what appears to be a firearm, and not the mere threat to use one, which is required” … . “A mere verbal threat is insufficient” as the words must be accompanied by some affirmative action appealing to one or more of the victim’s actual senses … . Here, the witness, whose dry cleaning store had been robbed on an earlier occasion, while testifying that the defendant threatened to use the “gun again,” denied seeing him make any motions with his hands. …

… [D]efendant’s conviction of criminal possession of a forged instrument in the third degree under counts 44 and 45 of the indictment must be vacated. The defendant’s wallet was improperly searched at the time of arrest … , rather than later as part of a “stationhouse inspection of an arrestee’s personal effects” … . People v Costan, 2021 NY Slip Op 04760, Second Dept 8-25-21

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 OR THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s proof of compliance with the notice requirements of RPAPL 1304 and the mortgage in this foreclosure action was insufficient:

RPAPL 1304 provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” (RPAPL 1304[1]). “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower … . The plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually occurred … .

… [T]he plaintiff failed to establish, prima facie, that the mailing of the RPAPL 1304 notice by first-class mail actually occurred. Graves [document management specialist] did not aver that she had personal knowledge of the mailing, did not describe a standard office procedure designed to ensure that items are properly addressed and mailed, and did not attach proof of first-class mailing of the RPAPL 1304 notice … . Moreover, the plaintiff failed to establish, prima facie, that the mailing of the notice of default in accordance with the terms of the mortgage agreement actually occurred … . Federal Natl. Mtge. Assn. v Donovan, 2021 NY Slip Op 04748, Second Dept 8-25-21

 

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THE STATUTE OF LIMITATIONS FOR SERVICE OF THE PETITION TO INVALIDATE A CERTIFICATE OF NOMINATION RAN OUT ON JULY 12; THE FACT THAT THE ORDER TO SHOW CAUSE ORDERED SERVICE BY JULY 19 DID NOT EXTEND THE STATUTE OF LIMITATIONS BEYOND JULY 12 (THIRD DEPT).

The Third Department determined the petition to invalidate a certificate of nomination was properly dismissed as untimely. The fact that the order to show cause directing service of the petition by a date which was beyond the statute of limitation was of no consequence:

… Election Law § 16-102 (2) provides … that “[a] proceeding with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within [10] days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee.” A special proceeding, in turn, is commenced by the filing of a petition … . Notably, “[a] petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2). In order to properly complete service, actual delivery must occur no later than the last day upon which the proceeding may be commenced” … . As the certificate of nomination … was filed on July 2, 2021, the last day upon which to commence this proceeding was July 12, 2021.

Even accepting as true that the petition was timely filed on July 12, 2021, the fact remains … that none of the named respondents was served with the petition prior to the expiration of the statute of limitations. To the extent that petitioners rely upon the service provisions embodied in the order to show cause, which permitted service by various means on or before July 19, 2021, such reliance is misplaced. A court cannot extend the time within which to commence an action or proceeding (see CPLR 201 ,,,). Matter of Facteau v Clinton County Bd. of Elections, 2021 NY Slip Op 04743, Third Dept 8-18-21

 

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THE STIPULATION OF DIVORCE DIVESTED THE HUSBAND OF HIS RIGHTS IN THE MARITAL PROPERTY; THEREFORE THE HUSBAND’S JUDGMENT CREDITOR COULD NOT REACH THE PROPERTY EVEN THOUGH THE HUSBAND’S NAME REMAINED ON THE DEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the stipulation of divorce awarding the marital property to the wife, Tiozzo, controlled such that the property could not be reached by the husband’s, Dangin’s, judgment creditor, Lenz. Lenz unsuccessfully argued the property was fair game because Dangin’s name remained on the deed:

The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent … . However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property is therefore beyon.d the reach of Lenz … . Tiozzo v Dangin, 2021 NY Slip Op 04739, First Dept 8-19-21

 

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SUPREME COURT, PURSUANT TO CPLR ARTICLE 77, PROPERLY RESOLVED THE DISTRIBUTION OF A $4.5 BILLION GLOBAL SETTLEMENT PAYMENT BY JP MORGAN CHASE IN THIS RESIDENTIAL-MORTGAGE-BACKED-SECURITIES-RELATED ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined Supreme Court properly resolved the distribution pursuant to CPLR article 77 of a $4.5 billion global settlement payment by JPMorgan Chase to investors to be made by residential mortgage-backed securities (RMBS) trusts. The opinion is detailed, fact-specific and cannot be fairly summarized here.  The rulings are specific to provisions included in or absent from the relevant pooling and servicing agreements (PSA’s). Matter of Wells Fargo Bank v Aegon USA Inv. Mgt., LLC, 2021 NY Slip Op 04740, First Dept 8-19-21

 

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PLAINTIFF NURSING HOME ALLEGED DEFENDANT “THIRD-PARTY” BREACHED OBLIGATIONS IMPOSED BY THE NURSING HOME ADMISSION AGREEMENT CONCERNING PAYMENT OF THE COSTS INCURRED BY THE RESIDENT; THE NURSING HOME’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Miller, determined plaintiff nursing home’s motion for summary judgment in this breach of contract action should not have been granted and defendant’s motion for summary judgment dismissing the action for “breach of a contractual duty to cooperate” should have been granted. The contract at issue is the nursing home’s admission agreement, which includes obligations imposed upon defendant “third-party” in connection with paying for the costs incurred by the resident of the nursing home. The opinion is fact-specific and analyzes the breach of contract allegations as they relate to specific provisions in the admission agreement. The analysis is too detailed to fairly summarize here. The court described the salient issues as follows:

Under state and federal law, a nursing facility is prohibited from requiring a third party to guarantee the payment of a resident as a condition of the resident’s admission to the facility. As this case illustrates, however, a nursing facility is permitted to require a third party to undertake other kinds of contractual obligations, and a nursing facility may recover damages that were proximately caused by a failure of the third party to fulfil those obligations. Where it is alleged that a variety of different contractual obligations have been breached, each such theory of liability must be proved, defended, and analyzed independently. Where an admissions agreement containing pages of third-party obligations is both a requirement for admission and aggressively enforced, the fine legal distinctions between an unlawful third party guarantee and a lawful agreement laden with additional affirmative obligations may have little practical significance for the third party. This is especially true where, as here, the nursing facility’s litigation is directed solely at the third party, and recovery is not sought from the estate of the actual resident of the nursing facility. Wedgewood Care Ctr., Inc. v Kravitz, 2021 NY Slip Op 04731, Second Dept 8-18-21​

 

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THE REFEREE DID NOT HAVE THE AUTHORITY TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE AS AN APPARENT SANCTION FOR DEFENDANT’S FAILURE TO APPEAR; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this matrimonial matter should not have been confirmed because the referee exceeded her authority by ruling the defendant could not present any evidence, an apparent sanction for defendant’s failure to appear:

“A referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference” (… see CPLR 4311). “A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction” … . Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317 [a]), “the referee had the power only to hear and report his [or her] findings”… .

Here, the Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case … . Pursuant to CPLR 4201, a referee assigned to hear and report “shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues.” However, neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. Pulver v Pulver, 2021 NY Slip Op 04727, Second Dept 8-18-21

 

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