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THE BANK DID NOT PRESENT ADMISSIBLE EVIDENCE OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present admissible evidence of defendants’ default in this foreclosure action:

… [T]he plaintiff failed to establish, prima facie, a default in payment by Vanterpool and Chalas [defendants]. While the plaintiff submitted an affidavit by someone with personal knowledge of the plaintiff’s loan servicer’s business practices and procedures, the affiant failed to submit any business record to substantiate the alleged default … . Further, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . U.S. Bank Trust, N.A. v Vanterpool, 2020 NY Slip Op 07946, Second Dept 12-23-20

 

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THE BANK PRESENTED INADMISSIBLE EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not submit admissible evidence of standing to bring the foreclosure action:

While a witness may always testify as to matters within his or her personal knowledge through personal observation … , here, Klein [plaintiff’s counsel] did not provide any factual details concerning when Cohn & Roth [Klein’s lawfirm] came into physical possession of the consolidated note and allonges … . Modlin’s [an authorized signatory’s] affidavit was similarly deficient inasmuch as she failed to identify the documents reviewed or any basis for the conclusion that the consolidated note and allonges had been in the plaintiff’s possession and were sent to Cohn & Roth prior to the commencement of the action. Under these circumstances, the statements made by Klein and Modlin constituted inadmissible hearsay and lacked probative value … . U.S. Bank Trust N.A. v Auxila, 2020 NY Slip Op 07945, Second Dept 12-23-20

 

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THE APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE, IN PART BECAUSE THE SENTENCING JUDGE MAY HAVE BEEN REACTING TO CRITICISM OF HOW THE TRIAL WAS HANDLED (SECOND DEPT).

The Second Department, reducing defendant’s sentence, over a dissent, determined the sentencing judge reacted to criticism of how the trial was conducted:

The Supreme Court imposed the maximum period of imprisonment of 4½ years’ incarceration …  and 2 years postrelease supervision … , apparently based upon the defendant’s claim during the presentence interview that the judge, the prosecutor, and the jury showed favoritism to the arresting officer, and the defendant did not like how the trial was conducted. At sentencing, when the court asked the defendant to explain that statement, the defendant stated that, although he thought the jury showed “favoritism,” he wanted “to move on from this” and he”learned [his] lesson.” The court, in response, stated that although “[o]bviously this is not the crime of the century,” and “you’re entitled to your opinion,” that opinion demonstrated a “willingness not to accept any responsibility.”

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances” … . Contrary to the conclusion of our dissenting colleague, that power “may be exercised, if the interest of justice warrants, without deference to the sentence court” … , especially where, as here, the sentencing court acted, at least in part, out of umbrage to criticism as to how the trial was conducted. In this case, considering the nonviolent nature of the crime involving a relatively small amount of drugs in the defendant’s possession, the defendant’s reported substance abuse issues, and the fact that the defendant is married and has a young child, the sentence was excessive to the extent indicated herein … . People v Morales, 2020 NY Slip Op 07919, Second Dept 12-23-20

 

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EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT, ASSAULT SECOND CONVICTION VACATED (SECOND DEPT).

The Second Department, vacating the assault second conviction, determined the evidence of “serious physical injury” was insufficient:

​The Legislature has defined the term “[s]erious physical injury” to mean “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” … .

Here … the evidence at the trial failed to demonstrate that the complainant suffered the protracted impairment of the function of a bodily organ as a result of the attack charged in count 2 of the indictment. This prong of the statute, by the plain language of the word “protracted,” requires evidence that the effects of the physical injury were experienced over an “extended” period of time … .  The People fail to cite to any evidence in this case, medical or otherwise, to show that the injury to the complainant resulted in any “protracted impairment” in the functioning of any of the complainant’s organs … . People v Clark, 2020 NY Slip Op 07911, Second Dept 12-23-20

 

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DEFENDANT WAS REMOVED FROM THE COURTROOM WHEN HE DISRUPTED THE PROCEEDINGS AS THE GUILTY VERDICT WAS BEING DELIVERED; DEFENDANT SHOULD FIRST HAVE BEEN WARNED THAT HE WOULD BE REMOVED IF HE CONTINUED TO DISRUPT THE PROCEEDINGS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the conviction, over a dissent, determined the defendant should not have been removed form the courtroom without first issuing a warning. The defendant was removed after disrupting the court as the verdict was being delivered:

After the jury foreperson announced “guilty” on the final charge (count 4) of criminal possession of a weapon in the second degree, the clerk proceeded to read back the verdict in order to inquire collectively of the jurors whether such was their verdict (see CPL 310.80). Before the jurors could respond, the defendant disrupted the proceeding by using profanity and declaring his innocence. The trial court immediately directed that the court officers remove the defendant from the courtroom. The defendant repeated his protestation and again the court directed that he be removed from the courtroom. Three more times the defendant either proclaimed his innocence or uttered a one-word profanity, and in each instance the court responded by directing that the defendant be removed from the courtroom. At some point during the foregoing exchanges, the defendant was apparently removed from the courtroom. The clerk read the verdict again, and made the requisite inquiry, to which the jurors responded. The defendant’s counsel thereafter requested that the jury be polled … . The jury was polled and the verdict was entered. …

A criminal defendant’s right to be present at all material stages of trial is encompassed within the confrontation clauses of the Federal and State Constitutions … and the New York Criminal Procedure Law … . The defendant’s outbursts and removal from the courtroom occurred during a material stage of the trial, as the jury had not yet been polled and the verdict had therefore not yet been entered … . However, “[a] defendant’s right to be present during trial is not absolute,” and “[t]he defendant may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” … . People v Antoine, 2020 NY Slip Op 07907, Second Dept 12-23-20

 

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IN THIS ACTION SEEKING TO ENFORCE AFFIDAVITS OF CONFESSION OF JUDGMENT, INFORMATION SUBPOENAS ISSUED BY PLAINTIFFS SHOULD NOT HAVE BEEN QUASHED (SECOND DEPT).

The Second Department, reversing Supreme Court, in an action seeking to enforce affidavits of confession of judgment, determined the motion to quash information subpoenas should not have been granted:

… Supreme Court improvidently exercised its discretion in granting the defendants’ motion to quash the information subpoenas. CPLR 5223 compels disclosure of “all matter relevant to the satisfaction of the judgment.” A judgment creditor is entitled to discovery from either the judgment debtor or a third party in order “to determine whether the judgment debtor[ ] concealed any assets or transferred any assets so as to defraud the judgment creditor or improperly prevented the collection of the underlying judgment” … . …

… [A] party moving to quash a subpoena has the initial burden of establishing either that the requested disclosure “is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious” … . Contrary to the defendants’ contention, the fact that they are seeking to rescind the judgment by confession in a separate action against the plaintiffs, without more, does not preclude enforcement of the judgment in favor of the plaintiffs and against the defendants … . Furthermore, the defendants failed to proffer any evidence that the requested disclosure is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. Lisogor v Nature’s Delight, Inc., 2020 NY Slip Op 07879, Second Dept 12-23-20

 

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A FALSE IMPUTATION OF HOMOSEXUALITY IS NOT DEFAMATION PER SE; THEREFORE SPECIAL DAMAGES MUST BE ALLEGED; THE FAILURE TO ALLEGE SPECIAL DAMAGES REQUIRED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Roman which cannot be fully summarized here, reversing Supreme Court, determined a false imputation of homosexuality is not defamation per se. Therefore the defamation cause of action, which did not allege special damages, should have been dismissed (defamation per se does not require special damages):

As set forth in the complaint, Pastor Maurice stated before approximately 300 members of the church that “the [p]laintiff was a homosexual,” and that “the [p]laintiff disrespected the church by viewing gay pornography on the church’s computer.” * * *

We agree with our colleagues in the Third Department that the earlier cases, including this Court’s decision in Matherson [100 AD2d 233], which held that the false imputation of homosexuality constitutes a category of defamation per se, are inconsistent with current public policy. * * *

… [W]e conclude that the false imputation of homosexuality does not constitute defamation per se. Matherson’s holding to the contrary should no longer be followed. Furthermore, the additional allegation that the plaintiff viewed gay pornography on the church’s computer likewise does not fit within any of the categories of defamation per se. Therefore, the plaintiff was required to allege special damages. Laguerre v Maurice, 2020 NY Slip Op 07877, Second Dept 12-23-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing with admissible evidence and the lost note affidavit was insufficient:

… [T]he only business record entered into evidence to support DeCaro’s [plaintiff’s loan verification consultant’s] testimony that the plaintiff was in possession of the note on the date of commencement was plaintiff’s Exhibit 7, a computer screen printout of a database tracking system. However, plaintiff’s Exhibit 7 failed to evince the facts for which it was relied upon. More specifically, while DeCaro contended that the document demonstrated that Wells Fargo, as custodian for the plaintiff, received the note July 16, 2005, and that the note was in Wells Fargo’s vault from July 2005 until December 2009, the document, in itself, failed to establish those facts.

Further, pursuant to UCC 3-804, which is intended to provide a method for recovering on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit due proof of the plaintiff’s ownership of the note, the facts which prevent the plaintiff from producing the note, and the note’s terms … . Here, the lost note affidavit, which failed to establish when the note was acquired and failed to provide sufficient facts as to when the search for the note occurred, who conducted the search, or how or when the note was lost, failed to sufficiently establish the plaintiff’s ownership of the note … . HSBC Bank USA, N.A. v Gilbert, 2020 NY Slip Op 07874, Second Dept 12-23-20

 

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AN INFORMAL JUDICIAL ADMISSTION BY PLAINTIFF BANK’S FORMER COUNSEL IN THIS FORECLOSURE ACTION RAISED A QUESTION OF FACT WHETHER THE LOAN HAD BEEN MODIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because of an informal judicial admission made by plaintiff’s former counsel. The admission raised a question of fact whether the note and mortgage had been superseded by a loan modification:

… [T]he averment of the plaintiff’s former counsel, in support of the voluntary discontinuance of the prior foreclosure action, that the loan had been modified, constituted an informal judicial admission by the plaintiff of that fact … . Informal judicial admissions are not conclusive, but are evidence of the fact admitted … .

On its motion, the plaintiff failed to proffer any evidence to explain the alleged error of its former counsel in a manner which would negate the probative value of his statement as an informal judicial admission. Accordingly, even assuming that the plaintiff’s submissions were otherwise sufficient to demonstrate, prima facie, the absence of a loan modification (see generally CPLR 4518[a] …) the former counsel’s admission raised a triable issue of fact as to the existence of a loan modification, which precluded summary judgment … . HSBC Bank USA, N.A. v Fortini, 2020 NY Slip Op 07873, Second Dept 12-23-20

 

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THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ROAD DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT, BUT IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE DEFECT; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this bicycle-related injury case should not have been granted. Plaintiff alleged a road defect caused his accident. The village demonstrated it did not have written notice of the defect but failed to demonstrate it did not create the defect:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiffs alleged in their complaint that the Village affirmatively created the defect that caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the alleged defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiffs to submit evidence sufficient to raise a triable issue of fact … . Holleran v Incorporated Vil. of Floral Park, 2020 NY Slip Op 07871, Second Dept 12-23-20

 

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