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INCONSEQUENTIAL VIOLATIONS OF THE ELECTION LAW DID NOT INVALIDATE THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inclusion of extraneous district numbers under the names of the candidates did not invalidate the designating petition:

Election Law § 6-134, setting forth rules for designating petitions, states that its provisions “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” … . Further, an error in the required information for a designating petition is not grounds for invalidation when the designating petition is sufficiently informative to preclude confusion or deception of the signers or the BOE [NYC Board of Elections] … . Thus, when an innocent and inconsequential violation of a technical rule of the Election Law pertaining to designating petitions is involved, by which a candidate has nothing to gain, and the violation creates no difficulty in reviewing the designating petition for its validity and accuracy and presents no potential for fraud or prejudice, said violation must be deemed inconsequential and the designating petition should be said to have complied with the requirements of the Election Law … . Applying this standard to the circumstances presented herein, we find that the extraneous inclusion in the designating petition pages of election district numbers is inconsequential … . Matter of Wagner v Elasser, 2021 NY Slip Op 03135, Second Dept 5-12-21

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE IN THIS FORECLOSURE ACTION (SECOND DEPT).

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

… [T]he plaintiff failed to submit proof of the actual mailings, such as the affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Instead, the plaintiff relied on the affidavit of an employee of the plaintiff’s loan servicer, who did not attest that she had personal knowledge that the notices were mailed, or attest to a standard office mailing procedure designed to ensure that items are properly addressed and mailed … .

Likewise, relying on the same affidavit, the plaintiff failed to establish compliance with the requirements for a notice of default pursuant to sections 15 and 22 of the mortgage agreement. Statements in the employee’s affidavit, “which asserted that the notice of default was sent in accordance with the terms of the mortgage, [were] unsubstantiated and conclusory and . . . , even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage” … . U.S. Bank N.A. v Peykar, 2021 NY Slip Op 03077, Second Dept 5-12-21

 

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THE FAILURE TO INCLUDE THE DATE OF THE PRIMARY ELECTION IN THE CERTIFICATE OF AUTHORIZATION DID NOT INVALIDATE IT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the fact that the date of the primary election was not stated on the certificate of authorization did not invalidate it:

… [T]he statute at issue here, Election Law § 6-120 (3), does not specifically prescribe that the date of the primary election be specified in the certificate of authorization … . We therefore conclude that there was substantial compliance with section 6-120 (3) inasmuch as the omission of the date of the primary election was ” ‘neither a defect invalidating the certificate nor a matter presenting an opportunity for prejudice or possibility of fraud’ ” … . Further, “[t]here is no question that the objectives of Election Law § 6-120 (3) were met here, as no issue was raised as to whether the subject authorization expressed the will of the party committee of the political subdivision involved” … . Matter of Kowal v Bargnesi, 2021 NY Slip Op 03014, Fourth Dept 5-11-21

 

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THERE IS A QUESTION OF FACT WHETHER A 16-YEAR-OLD SOFTBALL PLAYER ASSUMED THE RISK OF STEPPING IN A HOLE ON THE FIELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether a 16-year-old softball player assumed the risk of stepping into a hole on the softball field:

Plaintiff, an experienced 16-year-old softball player was playing softball on an outdoor artificial turf field owned by defendant City of New York (the City). Plaintiff maintained that she sustained injures to her left knee when she stepped into a hole on the turf that had been placed over existing turf. The City contends that the hole was an open and obvious condition and that plaintiff assume the risk of injury. We disagree. The photographs in the record appear to depict a tear or seam in the turf that may have caused a concealed depression relative to the surrounding playing surface.

Accordingly, issues of fact exist whether the City was negligent in maintaining the field in a reasonably safe condition. Although a participant in an athletic activity is deemed to have assumed “those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,” there remain issues of fact as to whether plaintiff’s injuries resulted from concealed or unreasonably increased risks … . A.S. v City of New York, 2021 NY Slip Op 02975, First Dept 5-11-21

 

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THE NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) PROPERLY HELD THE APARTMENT WAS RENT-STABILIZED, BUT DID NOT PROPERLY CALCULATE THE RENT OVERCHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the NYS Division of Housing and Community Renewal (DHCR) properly found the apartment in question was rent-stabilized, but used the wrong formula to calculate the rent overcharge. The decision is too detailed to fairly summarize here:

Supreme Court correctly denied AEJ’s petition insofar as it seeks reversal of DHCR’s determination that the apartment is rent-stabilized. DHCR’s examination of the apartment’s rental history to determine its regulated status had a rational basis … . DHCR erred, however, in establishing the base date rent by using the last registered rent from 1990 and then adding subsequent rent-stabilized rent increases to bring it up to date as of March 2010. The rent history of the apartment beyond the four year look back should not have been examined to determine the base rent for overcharge purposes … . Rather the base date rent is what [the tenant] actually paid four years prior to the date when [the landlord] filed its request for administrative determination (AD request) with DHCR. Matter of AEJ 534 E. 88th, LLC v New York State Div. of Hous. & Community Renewal, 2021 NY Slip Op 02977, First Dept 5-11-21

 

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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

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THE SUPERIOR COURT INFORMATION (SCI) WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT INCLUDED OFFENSES FOR WHICH DEFENDANT WAS NOT HELD FOR GRAND JURY ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the superior court information (SCI) was jurisdictionally defective because it included offenses for which defendant was not held for grand jury action:

The initial felony complaint charged defendant with two counts of criminal contempt in the first degree, and one count each of assault in the third degree and harassment in the second degree. Defendant subsequently agreed to waive prosecution by indictment and plead guilty to one count of aggravated criminal contempt, an offense greater than that charged in the original felony complaint. Because the only offense contained in the superior court information was not an offense for which defendant was held for grand jury action, or a lesser included offense, the superior court information was jurisdictionally defective … .

The fact that the felony complaint was amended to include a charge for aggravated criminal contempt does not require a different result. The superior court information is still defective because it included higher offenses for which defendant was not held for grand jury action (see CPL 195.20). People v Angel, 2021 NY Slip Op 03001, First Dept 5-11-21

 

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DEFENDANT DOCTOR’S FAILURE TO APPEAR FOR THE NO-FAULT EXAMINATION UNDER OATH (EUO) REQUESTED BY THE INSURER JUSTIFIED THE DENIAL OF DEFENDANT’S CLAIMS FOR BENEFITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the surgeon’s failure to appear for the no-fault examination under oath (EUO) requested by the insurer voided the insurance policy:

Plaintiff sent defendant a timely request for an examination under oath (EUO) with respect to a claim for benefits in the amount of $6,106.56, for shoulder surgery performed by defendant on an individual that was a passenger in a vehicle involved in an accident, covered by a no-fault insurance policy issued by plaintiff. Defendant failed to appear and plaintiff denied all claims for benefits made by defendant.

The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio … . The coverage defense applies to any claim and is not determined on a bill by bill basis … . The EUO was timely requested as to the second claim for benefits for the shoulder surgery, accordingly, defendant’s failure to appear at that EUO voided the policy ab initio as to all claims, and plaintiff’s cross motion for summary judgment should have been granted in its entirety. Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012, First Dept 5-11-21

 

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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE IS AN ARMED FELONY FOR SENTENCING PURPOSES IF THE FIREARM IS LOADED AND OPERABLE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, diverging from the First Department, determined criminal possession of a weapon second degree can constitute possession of a deadly weapon within the definition of an armed felony if the firearm is loaded and operable:

We disagree with the reasoning in Ochoa [182 AD3d 410, 1st Dept 2020] only to the extent that it held that all convictions of criminal possession of a weapon in the second degree for possessing a loaded firearm are not armed felonies. It is apparent that where a defendant possesses a firearm that is actually loaded with ammunition and is capable of being fired, he or she possesses a deadly weapon and is guilty of an armed felony offense. We conclude that it is appropriate to look at the particular facts of each case to determine whether the defendant is guilty of an armed felony. For example, a person is guilty of robbery in the first degree under Penal Law § 160.15 (2) when he or she commits a robbery while armed with a deadly weapon, which, as noted, includes a switchblade knife or a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged (§ 10.00 [12]). To determine if the defendant committed an armed felony, courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony, which excludes knives. Thus, where a defendant is convicted of robbery in the first degree for the use of a knife, that is not an “armed felony” … . Where, however, the robbery is committed with a loaded, operable firearm, it is an “armed felony” (see People v Jiminez, 165 AD2d 692, 692-693 [1st Dept 1990] … ). In Jiminez, the Court held that “[s]ince defendant pleaded guilty to committing first degree robbery while armed with a pistol he was properly sentenced as an armed felony offender” … , despite the fact that a first-degree robbery conviction is not always an armed felony. Just as courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony to determine that knives are excluded therefrom, so too should courts look to whether the firearm fits within that definition, i.e., a firearm that is actually loaded and capable of being fired. People v Meridy, 2021 NY Slip Op 02894, Fourth Dept 5-7-21

 

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THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a People’s appeal, determined the district attorney violated the Criminal Procedure Law by refusing to tell the grand jury defendant had requested that two witnesses give testimony, but the violation did not warrant dismissal of two counts of the indictment. The decision includes a detailed discussion of the district attorneys duties and discretion with respect to a defendant’s request for witness testimony before a grand jury:

… [A] prosecutor may not “suppress[ a] defendant’s request to call . . . witness[es] nor strip[ ] the grand jury of its discretion to grant or deny that request” … . Instead, “[a]lthough [a] prosecutor [cannot] avoid presenting [a requested] witness’s name for a vote, the prosecutor [is] free, in the role of advisor to the grand jury, to explain that the witness [does] not have relevant information [or] primarily offer[s] inadmissible hearsay testimony, and if unpersuasive in this effort, the prosecutor [may seek] a court order quashing the subpoena or limiting the witness’s testimony as provided in CPL 190.50 (3)” … . … [T]he court properly determined that the People, despite their stated concerns about the admissibility of the proposed testimony, violated their statutory obligation by refusing to present to the grand jury defendant’s request that two of the vehicle’s other occupants be called as witnesses. * * *

We … conclude that “this was not one of the rare cases of prosecutorial misconduct entitling a defendant to the exceptional remedy of dismissal, because there is no showing that, in the absence of the complained-of misconduct, the grand jury might have decided not to indict the defendant” … . … [T]he People did not engage in an overall pattern of willful and pervasive misconduct; instead, the failure to present defendant’s request for witnesses to the grand jury constituted an isolated instance of misconduct involving, at worst, the erroneous handling of an evidentiary matter, which “do[es] not merit invalidation of the indictment” … . People v Wilcox, 2021 NY Slip Op 02893, Fourth Dept 5-7-21

 

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