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PLAINTIFF’S MOTION TO RESTORE THE FORECLOSURE ACTION TO THE CALENDAR SHOULD HAVE BEEN GRANTED; ABSENT SPECIFIC AFFIRMATIVE DEFENSES PLAINTIFF BANK NEED NOT PROVE COMPLIANCE WITH STATUTORY AND CONTRACTUAL NOTICE REQUIREMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s motion to restore the matter to the calendar should have been granted and plaintiff’s motion for summary judgment should have been granted. The court noted that defendant had not waived the defense of standing but plaintiff submitted sufficient proof of standing and held plaintiff, in the absence of specific affirmative defenses, need not present proof of compliance with statutory and contractual notice requirements:

The defendant’s contention that the plaintiff was required to demonstrate its compliance with statutory and/or contractual notice requirements in order to establish its entitlement to judgment as a matter of law is without merit … . Specifically, the defendant’s sixth affirmative defense generally and conclusorily alleged that the “plaintiff has failed to comply with all conditions precedent to commencement of this action.” This Court has held such language to be insufficient to raise the issue of the plaintiff’s compliance with either statutory or contractual notice requirements ( … CPLR 3013). Absent there being a cognizable affirmative defense alleging non-compliance with statutory or contractual notice requirements, the plaintiff was not required to address those issues as part of its prima facie burden in moving for summary judgment … . In opposition, the defendant failed to raise a question of fact that the plaintiff failed to comply with statutory or contractual notice requirements. One W. Bank, FSB v Rosenberg, 2020 NY Slip Op 08070, Second Dept 12-30-20

 

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SURROGATE’S COURT HAD THE AUTHORITY TO APPROVE, NUNC PRO TUNC, A METHOD OF SERVICE ON AN OUT-OF-STATE PARTY ACCOMPLISHED WITHOUT PRIOR COURT APPROVAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined Surrogate’s Court had the authority to approve, nunc pro tunc, service upon an out-of-state party by a method which was not in compliance with the Surrogate’s Court Procedure Act (SCPA). Here the attempts at service which complied with the SCPA were unsuccessful. Without procuring permission from court, the executor served the party by first class mail and the letter was not returned. Surrogate’s court approved the service by mail nunc pro tunc:

… [S]ince we find that the Surrogate’s Court had the authority to deem service on the appellant complete, nunc pro tunc, pursuant to SCPA 307(3)(b), which allows for substituted service such as regular first-class mail, the remaining issue to address is whether the court properly determined that such substituted service was valid; to wit, whether service on the appellant by regular first-class mail met the requirements of due process such that personal jurisdiction over the appellant was established … . * * *

… [T]he Executor undertook diligent but unsuccessful attempts to serve the appellant pursuant to SCPA 307(2) before regular first-class mail service was undertaken. Moreover, this is not a circumstance where the appellant had no knowledge of the proceeding that was taking place. Here, the appellant acknowledged that she (1) received a copy of the notice of probate at the time of the commencement of the probate proceeding, (2) immediately retained an attorney to represent her interests in the probate proceeding, and (3) subsequently received a copy of the will. The appellant was also aware of the scheduled hearing on July 12, 2017, in advance of that date, and neither she nor her attorney at that time chose to attend the proceeding. Thus, we find that the substituted service on the appellant by regular first-class mail satisfied the requirements of due process … . Matter of Pollina, 2020 NY Slip Op 08068, Second Dept 12-30-20

 

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THE PETITIONER, A PROBATIONARY POLICE OFFICER CHALLENGING HIS TERMINATION, RAISED QUESTIONS OF FACT IN THIS ARTICLE 78 PROCEEDING; THEREFORE THE SUMMARY DETERMINATION PURSUANT TO CPLR 409 WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Article 78 proceeding reviewing the termination of a probationary police officer (Lake) involved questions of fact rendering a summary determination pursuant to CPLR 409(b) improper:

Since Lake submitted sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the Town were pretextual, the Town was not entitled to a summary determination on the petition (see CPLR 409[b] …). To the contrary, the record presented triable issues of fact as to whether Lake’s employment was terminated in bad faith for reasons unrelated to his job performance … . Under the these circumstances, the matter should be remitted to the Supreme Court, Suffolk County, for an immediate trial … . Matter of Lake v Town of Southold, 2020 NY Slip Op 08064, Second Dept 12-30-20

 

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MOTHER SHOULD HAVE BEEN ADVISED OF HER RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been advised of her right to counsel in this custody proceeding:

“Family Court Act § 262 provides certain parties to particular Family Court proceedings with a statutory right to counsel. If the party in question falls within one of the enumerated subdivisions thereto, he or she must be advised by the court, before proceeding, that he or she has the right to representation, the right to seek an adjournment to confer with counsel and the right to assigned counsel if he or she cannot afford to retain counsel” … . The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the mother clearly fell within one of the enumerated subdivisions of Family Court Act § 262 because she was the respondent in a custody modification proceeding. Therefore, the Family Court should have advised the mother of her right to counsel. Matter of Follini v Currie, 2020 NY Slip Op 08062, Second Dept 12-30-20

 

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MOTHER’S PETITION TO MODIFY THE PARENTAL ACCESS SCHEDULE SHOULD NOT HAVE BEEN RULED ON WITHOUT HOLDING A HEARING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not have ruled in this custody proceeding without holding a hearing. Mother had filed a petition seeking modification of the parental access schedule:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . This 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 interest of a child” … .

Although the Court of Appeals has “decline[d] . . . to fashion a ‘one size fits all’ rule mandating a hearing in every custody case statewide,” it has cautioned that 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” … . The Court of Appeals has, therefore, criticized the “undefined and imprecise ‘adequate relevant information’ standard” as entailing “an unacceptably-high risk” of resulting in custody determinations that neither “conform to the best interest of a child” nor “adequately protect” a parent’s “fundamental right . . . ‘to control the upbringing of a child'”… . Accordingly, “[w]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the father’s parental access … . Moreover, the Family Court, in making its determinations without a hearing, relied upon the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by the parties. Contrary to the contention of the mother and the attorneys for the children, “the court’s mere reliance upon ‘adequate relevant information,’ as opposed to admissible evidence, was erroneous” … . Matter of Corcoran v Liebowitz, 2020 NY Slip Op 08058, Second Dept 12-30-20

 

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DEFENDANT INSURER DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER PLAINTIFFS (INSUREDS) VIOLATED THE COOPERATION CLAUSE IN THE POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer did not eliminate all questions of fact whether the plaintiffs (insureds) violated the cooperation clause in the policy:

“An unexcused and willful refusal to comply with disclosure requirements in an insurance policy is a material breach of the cooperation clause and precludes recovery on a claim. Compliance with such a clause is a condition precedent to coverage, properly addressed by the court” … . “In order to establish breach of a cooperation clause, the insurer must show that the insured engaged in an unreasonable and willful pattern of refusing to answer material and relevant questions or to supply material and relevant documents” … .

Here, the defendant failed to eliminate all triable issues of fact as to whether the plaintiffs breached the cooperation clause of the policy. Jahangir v Tri-State Consumer Ins. Co., 2020 NY Slip Op 08049, Second Dept 12-30-20

 

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THE REFEREE REPORT IN THIS FORECLOSURE ACTION RELIED ON HEARSAY AND THEREFORE SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the calculations made by the referee were based on hearsay and therefore the referee’s report in this foreclosure action should not have been confirmed:

The calculations of the referee were based upon the affidavit of Veronika Steen, Assistant Vice President of the plaintiff’s successor-by-merger. Steen averred that she had personal knowledge of the matter through her review of the relevant documents, and that she had “[a]nnexed . . . a breakdown of the amounts due.” However, the documents produced include the agreements between the parties, not the payment history. Thus the computation was improperly premised upon unproduced business records … . Accordingly, the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale should have been denied. We therefore remit the matter to the Supreme Court … for a new report computing the amount due to the plaintiff in accordance herewith. Hudson City Sav. Bank v DePasquale, 2020 NY Slip Op 08047, Second Dept 12-30-12

 

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CAUSE OF ACTION ALLEGING THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION WAS UNCONSCIONABLE SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging the stipulation of settlement in this divorce action was unconscionable should have been dismissed:

… [W]e agree with the defendant that the Supreme Court should have granted that branch of her cross motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action, seeking to set aside the stipulation on the ground of unconscionability. “‘An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense'” … . “An agreement, however, is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided'” … . Here, the terms of the stipulation, while perhaps improvident or one-sided in favor of the defendant, were not so unfair as to shock the conscience and confound the judgment of any person of common sense. Heinemann v Heinemann, 2020 NY Slip Op 08044, Second Dept 12-30-20

 

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DEFENDANT’S FEIGNED ISSUE OF FACT DID NOT RAISE A QUESTION OF FACT IN THE PEDESTRIAN TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant had raised a feigned issue which did not raise a question of fact in this pedestrian traffic accident case:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through her own affidavit, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her … .

In opposition, the defendants failed to raise a triable issue of fact. Edelstein’s affidavit contradicted his admission immediately following the accident, as reflected in a police accident report. This affidavit was a belated attempt to avoid the consequences of his earlier admission by raising a feigned issue and was insufficient to raise a triable issue of fact … . Gooden v EAN Holdings, LLC, 2020 NY Slip Op 08043, Second Dept 12-30-20

 

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QUESTION OF FACT WHETHER DEFENDANT DRIVER ATTEMPTED TO MAKE A LEFT TURN WHEN PLAINTIFF’S DECEDENT WAS TOO CLOSE IN THE ON-COMING LANE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant driver executed a left turn when plaintiff’s decedent, who apparently was being chased by police, was too close:

“Vehicle and Traffic Law § 1141 provides that the ‘driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard'” … . The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law … . A driver is negligent where he or she failed to see that which, through proper use of his or her senses, the driver should have seen … . “At the same time, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident” … .

Here, the evidence submitted by [defendants] in support of their motion … failed to eliminate triable issues of fact as to whether [defendant driver] was free from fault in the happening of the accident and, if not, whether [plaintiff’s decedent’s] negligence was the sole proximate cause of the accident … . Specifically, a triable issue of fact exists, inter alia, as to whether, at the time [defendant driver] initiated her turn, [plaintiff’s decedent’s] vehicle was “‘so close as to constitute an immediate hazard'” … . Gaudio v City of New York, 2020 NY Slip Op 08041, Second Dept 12-30-20

 

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