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PLAINTIFF ESTATE MET THE CRITERIA FOR ATTACHMENT AGAINST REAL PROPERTY OWNED BY DEFENDANTS WHO OWNED AND/OR OPERATED A LIMOUSINE RENTAL SERVICE; THE LIMOUSINE WAS INVOVLED IN A HORRIFIC ACCIDENT KILLING PLAINTIFF’S DECEDENT AND 19 OTHERS (THIRD DEPT).

The Third Department, affirming Supreme Court, over a concurring memorandum, determined the criteria for attachment were met by plaintiff against real property owned by the Hussain defendants. The Hussain defendants owned and/or operated a business which rented a limousine involved in an accident killing plaintiff’s decedent and 19 others:

Plaintiff demonstrated a probability of success on his claims [relating the maintenance of the limousine].

Plaintiff … pointed to CPLR 6201 (3), which, because he is likely to succeed in recovering a money judgment against defendants, applies if defendants “assigned, disposed of, encumbered or secreted property,” or were about to do so, with the “intent to defraud [their] creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor” … . … As “[t]he mere removal or assignment or other disposition of property is not grounds for attachment,” however, plaintiff was further required to show that defendants offered the four properties for sale with the requisite intent to either defraud their creditors or frustrate a potential money judgment  … . …

Plaintiff … met his burden of showing that defendants harbored the requisite intent in attempting to dispose of the parcels at issue and, in the absence of any proof to rebut that showing, he was properly granted confirmation under CPLR 6201 (3) … . …

Plaintiff was … entitled to confirmation with regard to Shahed Hussain because he was “a nondomiciliary residing without the state” within the meaning of CPLR 6201 (1). Plaintiff represented, with support from annexed newspaper accounts, that Shahed Hussain left New York for Pakistan in March 2018 and had no plans to return to the United States. Halse v Hussain, 2021 NY Slip Op 02032, Third Dept 4-1-21

 

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THE CUSTODY AWARD SHOULD NOT HAVE BEEN MADE, SUA SPONTE, WITHOUT A PLENARY HEARING; WHERE A CUSTODY AWARD IS MADE WITHOUT A HEARING THE COURT SHOULD ARTICULATE THE FACTORS CONSIDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the court should have held a hearing before awarding sole custody of the children to plaintiff. The Second Department noted that, where a hearing is not held, the court should articulate the factors considered:

“The court’s paramount concern in any custody and visitation proceeding is to determine, under the totality of the circumstances, what is in the best interests of the child[ren]” … . “Custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interests of the child” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the record reflects that the Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children … . Moreover, the court failed to articulate what factors it considered in awarding custody to the plaintiff … . Indictor v Indictor, 2021 NY Slip Op 01968, Second Dept 3-31-21

 

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THE 2ND DEPARTMENT REVERSED THE AWARD OF SUMMARY JUDGMENT TO THE BANK BECAUSE ONE OF TWO BORROWERS WAS NOT NAMED IN THE RPAPL 1306 FILING; THIS RULING MAY NOT HOLD UP BECAUSE, ON MARCH 30, 2021, THE COURT OF APPEALS HELD ONLY ONE BORROWER NEED BE NAMED IN THE RPAPL 1306 FILING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because an apparent borrower, Kosin, was not named in the bank’s electronic filing required by RPAPL 1306. [Note that the Court of Appeals, on March 30, 2021, held that the bank need only name one borrower in the RPAPL 1306 notice. That holding may or may not apply to this case, which has slightly different facts in that it was not certain Kosin was, in fact, a borrower. See CIT Bank N.A. v Schiffman, 2021 NY Slip Op 01933, CtApp 3-30-21.]:

… [T]he plaintiff’s noncompliance with RPAPL 1306 by establishing that the plaintiff only made an RPAPL 1306 filing with respect to [defendant borrower] Hollien, but did not make any such filing with respect to Kosin. In opposition, the plaintiff failed to raise a triable issue of fact as to its compliance with this necessary precondition to commencement of a foreclosure action … . Contrary to the plaintiff’s contention, it was still required to comply with RPAPL 1304 and 1306 with respect to Kosin because, although Kosin was not listed as a “borrower” on the note, he was defined as a “borrower” on the mortgage agreement. Since the mortgage agreement refers to Kosin as a “borrower” on both the first page and the signature page, Kosin is a “borrower” for purposes of RPAPL 1304 and 1306 … . Although there is some ambiguity in the language of the mortgage agreement, any ambiguities in the language of the document must be construed against the plaintiff, as the plaintiff is the party who supplied the document … . Federal Natl. Mtge. Assn. v Hollien, 2021 NY Slip Op 01963, Second Dept 3-31-21

 

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PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of compliance with the notice requirements of RPAPL 1304:

[T]he plaintiff submitted the affidavit of April Simmons, an employee of the plaintiff’s loan servicer, Nationstar Mortgage, LLC (hereinafter Nationstar), along with copies of two 90-day notices addressed to the defendant. Simmons, however, did not state in her affidavit that she personally mailed these notices to the defendant, and she did not aver that she was familiar with the mailing practices and procedures of the entity which sent the notices … . Moreover, although the envelopes accompanying the 90-day notices state “First-Class Mail” and contain a bar code above a 20-digit number, the plaintiff failed to submit any receipt or corresponding document proving that the notices were actually sent by first-class and certified mail to the defendant more than 90 days prior to the commencement of the action … . U.S. Bank, N.A. v Zientek, 2021 NY Slip Op 02015, Second Dept 3-31-21

 

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THE BANK’S PROOF OF STANDING TO BRING THE FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT),

The Second Department determined the bank’s motion for summary judgment in this foreclosure action should have been denied because the proof the bank has standing was insufficient:

… [T]he 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) … . U.S. Bank, N.A. v Ainsley, 2021 NY Slip Op 02014, Second Dept 3-31-21

 

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THE ESTATE OF THE MORTGAGOR WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY WAS CONVEYED BEFORE HER DEATH AND THE COMPLAINT DOES NOT SEEK A DEFICIENCY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the estate of the mortgagor was not a necessary party in the foreclosure proceeding and the complaint should not have been dismissed on that ground:

The estate of the mortgagor was not a necessary party to this action, as it had no interest in the property at the time this action was commenced, inasmuch as the mortgagor conveyed the property that is subject to the mortgage to the defendant prior to her death, and the complaint does not seek a deficiency judgment against her estate … . U.S. Bank N.A. v Apelbaum, 2021 NY Slip Op 02008, Second Dept 3-31-21

 

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PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance RPAPL 1304 and therefore was not entitled to summary judgment:

… [T]he plaintiff submitted, inter alia, an affidavit of Tewana Sheriff, a foreclosure administrator for the plaintiff’s servicer who, based upon review of “business records maintained for the purpose of servicing plaintiff’s mortgage loans,” averred that the 90-day notice was sent via first-class and certified mail in accordance with RPAPL 1304. Sheriff did not refer to any specific records demonstrating compliance with RPAPL 1304, did not aver that she had personal knowledge of the subject mailings, and did not set forth personal knowledge of a standard office mailing procedure designed to ensure that items were properly addressed and mailed. Although the plaintiff submitted a signed certified mail receipt and United States Postal Service tracking information, those items do not refer to a 90-day notice, and a copy of the 90-day notice does not include a United States Postal Service tracking number corresponding with the certified mail receipt … . Moreover, the plaintiff failed to, inter alia, submit any proof of mailing the 90-day notice by first-class mail. Therefore, 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 defendants, to strike their answer, and for an order of reference … . Santander Bank, N.A. v Schaefer, 2021 NY Slip Op 02005, Second Dept 3-31-21

 

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PLAINTIFF, AN EXTERMINATOR, WAS IN THE ATTIC OF DEFENDANT’S HOUSE; THE ATTIC HAD NO FLOOR AND THE PLAINTIFF WALKED ON THE BEAMS OR JOISTS; THE PLAINTIFF TESTIFIED HE STEPPED ON A SMALLER PIECE OF WOOD LYING ACROSS THE BEAMS, IT GAVE WAY AND HIS LEG WENT THROUGH THE CEILING; THE 2ND DEPARTMENT, OVER A TWO-JUSTICE DISSENT, DETERMINED THERE WAS NO EVIDENCE THE SMALLER BOARD WAS A LATENT DEFECT OR THAT DEFENDANT HAD NOTICE OF ANY DEFECT, SET ASIDE THE PLAINTIFF’S VERDICT AND DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to set aside the plaintiff’s verdict and dismiss the complaint should have been granted. Plaintiff, an exterminator, went into defendant’s attic which apparent had no floor, only the beams or joists. Plaintiff testified that there were some smaller boards lying across the joints. According to the plaintiff, when he stepped on one of the smaller boards it gave way and his leg went through the ceiling:

“[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” … . However, in order to meet his prima facie burden of proof at trial, the plaintiff was required to submit sufficient evidence to enable the jury to decide this critical issue in a logical manner, based on the inferences to be drawn from the evidence, rather than through sheer speculation or guesswork … . Here, the evidence showed that the main beams were part of the structure of the house, but the function of the smaller pieces of wood was never really made clear, except that the plaintiff offered that they may have been intended to hold the insulation in place. In fact, the jury heard next to nothing about the smaller piece of wood that allegedly caused the plaintiff to fall. There were no pictures of it, no testimony regarding its dimensions, no evidence as to whether such a smaller piece of wood would ordinarily be safe to walk on, no evidence as to whether the smaller piece of wood even appeared reasonably safe to walk on, and no evidence that the smaller piece of wood was in a rotted, deteriorated, or otherwise unsafe condition, other than the plaintiff’s testimony that it looked “discolored” and “pretty damp.”

Viewing the evidence in the light most favorable to the plaintiff, and affording him every favorable inference which may properly be drawn from the facts presented, there was simply no rational basis upon which the jury could determine, without speculating, that the smaller piece of wood that allegedly caused the plaintiff to fall constituted a latent hazard due to its alleged rotted condition … . Saintume v Lamattina, 2021 NY Slip Op 02004, Second Dept 3-31-21

 

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IN A SLIP AND FALL CASE, PROOF OF A GENERAL CLEANING AND INSPECTION POLICY DOES NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).

The Second Department determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Evidence of a general cleaning and inspection policy does not demonstrate the lack of constructive notice of the dangerous condition:

The defendant also failed to show, prima facie, that it did not have constructive notice of the condition that the plaintiff alleged caused her to fall. “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Although the defendant submitted the transcript of the deposition testimony of the individual who was the managing partner of the restaurant at the time of the accident, the manager testified only as to the restaurant’s general cleaning and inspection policy and not about any inspections that may have occurred prior to the plaintiff’s fall. Piotrowski v Texas Roadhouse, Inc., 2021 NY Slip Op 02000, Second Dept 3-31-21

 

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THE TRIAL JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge did not conduct an adequate inquiry before allowing defendant to represent himself:

A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . In order to make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that a defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . “The record should also disclose ‘that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ of the right to counsel” … . Here, although the court obtained certain pedigree information from the defendant, it failed to ascertain that the defendant was aware of the risks inherent in proceeding without an attorney and the benefits of having counsel represent him at trial … . Moreover, the court failed to discuss the potential sentence that could be imposed … . Thus, the court’s inquiry was insufficient to ensure that the defendant understood the dangers and disadvantages of self-representation. People v Lemmo, 2021 NY Slip Op 01997, Second Dept 3-31-21

 

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