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THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WITH ADMISSIBLE EVIDENCE; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The bank’s motion for summary judgment should not have been granted:

The plaintiff failed to present admissible evidence establishing that the plaintiff or its counsel was in possession of the note at the time of commencement of the action. In support of its motion, the plaintiff submitted the affidavit of Howard R. Handville, a senior loan analyst at Ocwen Financial Corporation whose indirect subsidiary is Ocwen Loan Servicing, LLC (hereinafter Ocwen), the plaintiff’s loan servicer. Handville attested that he reviewed the servicing records maintained by Ocwen in its ordinary course of business, that prior servicers’ records were integrated into Ocwen’s records and relied upon by Ocwen and that “[b]ased on [his] review of the Servicing Records, the original Note and Mortgage for the Loan were physically delivered to Plaintiff’s custodian on April 25, 2007, prior to the commencement of this foreclosure action.” Handville further averred that “[s]ince that date, the original Note and Mortgage have remained in the physical possession of Plaintiff or its counsel.” Even if Handville’s affidavit was sufficient to lay a proper foundation for the admission of the “Servicing Records,” the affidavit was insufficient to establish standing because the records themselves were not submitted by the plaintiff. “‘[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted’ … , and ‘a witness’s description of a document not admitted into evidence is hearsay’ … . Deutsche Bank Natl. Trust Co. v Schmelzinger, 2020 NY Slip Op 07543, Second Dept 12-16-20

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE CITY CREATED THE ROAD CONDITION WHICH CAUSED HIS SLIP AND FALL; THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined plaintiff’s slip and fall action should not have been dismissed. Although the city demonstrated it did not have written notice of the condition, plaintiff raised a question of fact whether the city created the dangerous condition when it attempted road repair:

… [P]laintiff Nicholas Martin testified consistently — both at a hearing held pursuant to General Municipal Law § 50-H and a deposition — that on January 17, 2017, he slipped and fell on Seward Avenue, between Pugster Avenue and Olmtead Avenue. At the time, plaintiff lived on the same block where his accident occurred. He specified that he fell on the roadway in front of 2007 Seward Avenue. When shown photographs where his accident occurred, he stated that he fell on a square blacktop that contained loose gravel and was raised about one and one-half inches. He had noticed the condition about a month before his accident, when pavement work had been done. Although he did not see who did the road work, his girlfriend told him that the City had performed the work. Martin v City of New York, 2020 NY Slip Op 07503, First Dept 12-15-20

 

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THE SEXUAL INTERCOURSE WAS DEEMED NONCONSENSUAL SOLELY BECAUSE THE VICTIM WAS 14; THE DEFENDANT WAS 27; DEFENDANT WAS NOT ENTITLED TO A DOWNWARD DEPARTURE TO RISK LEVEL ONE; THERE WAS A SUBSTANTIVE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant was not entitled to a downward risk level departure from level two to level one. The defendant was 27 when he had sexual intercourse with the fourteen-year-old victim. The majority argued the age difference precluded a departure:

The record shows that this 27 year-old defendant engaged in nonconsensual sexual intercourse with the victim, who was 14 years old, the only relevant crime considered by the SORA court regarding his risk level designation. * * *

While courts have recognized that sexual conduct that was nonconsensual solely by virtue of age may result in an over-assessment in risk level designation, those cases did not involve a defendant who was nearly twice as old as the victim, as in this case … . People v Romulus, 2020 NY Slip Op 07512, First Dept 12-15-20

 

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A NUMBER OF GUILTY-PLEA CONVICTIONS REVERSED BECAUSE THE DEFENDANTS WERE TOLD THE WAIVER OF APPEAL WAS AN ABSOLUTE BAR TO APPEAL (CT APP).

The Court of Appeals, over an extensive dissent with respect to one case, reversed a number of guilty-plea convictions because the judges told the defendants the waiver was an absolute bar to appeal:

The waivers of the right to appeal were invalid and unenforceable pursuant to our analysis in People v Thomas (34 NY3d 545 [2019]). It is well-settled that “a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal” … . Nonetheless, in each case, among other infirmities, the rights encompassed by an appeal waiver were mischaracterized during the oral colloquy and in written forms executed by defendants, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and, in the Queens and Orleans Counties cases, advised that the waiver encompassed “collateral relief on certain nonwaivable issues in both state and federal courts” … . Viewing these deficiencies in the context of the record in each case and considering the totality of the circumstances, including in several cases defendants’ significant mental health issues … , we cannot say that “defendants comprehended the nature [and consequences] of the waiver of appellate rights” … . People v Bisono, 2020 NY Slip Op 07484, CtApp 12-15-20

 

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PLAINTIFF WAS INJURED WHEN A WHEEL ON THE CONTAINER HE WAS PUSHING GOT STUCK IN A GAP IN THE FLOOR AFTER THE PLYWOOD COVERING THE GAP BROKE; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE RELEVANT INDUSTRIAL CODE PROVISION SHOULD HAVE BEEN GRANTED; THE LABOR LAW 241(6), LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241(6), Labor Law 200 and Negligence causes of action should not have been dismissed. Plaintiff was pushing a container of cinderblocks when plywood covering a gap in the floor broke and a wheel got stuck, causing plaintiff to be propelled head over heels and land on his back. The Second Department further held plaintiff should have been allowed to amend the complaint by adding the relevant Industrial Code provision, despite the 3 1/2 delay in bringing the motion to amend. Defendant was not prejudiced by the amendment:

As Industrial Code (12 NYCRR) § 23-1.7(e)(1) is applicable to these facts and defendant failed to show that it would be prejudiced by an amendment of the bill of particulars to assert a violation of this provision as a predicate to the Labor Law § 241(6) claim, plaintiff’s motion to amend should be granted (see CPLR 3025[b] …). In view of the absence of prejudice to defendant, plaintiff was not required to explain his 3½-year delay in bringing this motion … . …

… [A]n inadequately protected gap in the floor of a passageway at a construction site that causes a container, dumpster, or the like to become stuck or otherwise lose its balance and trip, slip, or fall violates Industrial Code (12 NYCRR) § 23-1.7(e)(1) and can serve as a predicate for a Labor Law § 241(6) claim. …

Defendant failed to establish prima facie that it neither created nor had notice of the dangerous condition of the hallway floor … . Trinidad v Turner Constr. Co., 2020 NY Slip Op 07519, First Dept 12-15-20

 

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THE HOMEOWNERS EXERCISED NO SUPERVISORY CONTROL OVER THE INJURY-CAUSING WORK IN THIS LABOR LAW 200 AND NEGLIGENCE CASE; THE CASE SHOULD HAVE BEEN ANALYZED AS A “MEANS AND METHODS OF WORK” ACTION, NOT A “CREATE OR HAVE NOTICE OF A DANGEROUS CONDITION” ACTION; THE HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 200 and negligence causes of action against the homeowners should have been dismissed because the homeowners did not exercise any supervisory control over plaintiff’s work. The hole into which plaintiff fell was dug as part of the construction project. Supreme Court should not have analyzed the case using a “create or have notice of a dangerous condition” theory:

Plaintiff was injured when he fell into a hole dug by employees of codefendant Apex Construction/Masonry Corp. (Apex) in the backyard of Homeowner Defendants’ home during renovation of the premises. The hole was created for the purpose of building the foundation for a deck. Homeowner Defendants hired nonparty IA Construction Management Inc. as the general contractor, which subcontracted out part of the work to Apex; plaintiff was an employee of IA Construction.

Here, plaintiff’s accident arose from the means and methods of Apex’s work, not a defective premises condition. Thus, the dispositive issue is whether the Homeowner Defendants had authority to exercise supervisory control over the injury-producing work, not whether they created or had notice of the hazardous condition … . The record establishes, as a matter of law, that they had no such authority. It is undisputed that Homeowner Defendants lived offsite during the renovation project and had no involvement with the work, and Apex’s owner testified that the homeowners did not direct or control Apex’s work … . Tsongas v Apex Constr./Masonry Corp., 2020 NY Slip Op 07520, First Dept 12-15-20

 

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PLAINTIFF RAISED QUESTIONS OF FACT ABOUT HIS SEXUAL HARASSMENT AND RETALIATION CAUSES OF ACTION AGAINST HIS EMPLOYER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had raised questions of fact on his sexual harassment and retaliation causes of action against his employer:

[Re: sexual harassment] Plaintiff testified that his supervisor, defendant Hall, made repeated sexual advances towards him, including reaching out to touch his face and holding his hand in an elevator while they were alone. She also initiated conversations that made him uncomfortable, telling him she had a “crush” on him, telling him she was single and twice inviting him to her home to repair “a hole” in her apartment. In one conversation, plaintiff claimed Hall said she had a tattoo, adding that “You have to undress me to see it.” Plaintiff further testified that after he rebuffed Hall’s sexual advances, she repeatedly brought him to the Human Resources manager’s office to complain about his work product and that she solicited complaints about him from other coworkers. Plaintiff claims that he complained to HR about Hall’s behavior in December. In January he was told that either he could resign or he would be fired. * * *

[Re: retaliation] Defendants submitted evidence of complaints about plaintiff’s brash demeanor, insensitive comments to coworkers, and poor work ethic, which demonstrate his difficulties following orders and getting along with his peers. By doing so, defendants satisfied their prima facie burden. In opposition, plaintiff relies on Hall’s offensive conduct, including her telling him, in sum and substance, that if they could not be together then plaintiff could not work around Hall, and defendants’ failure to adequately investigate his claims prior to his termination. Plaintiff’s assertions raise disputed issues of fact about whether there was a mixed motive to terminate his employment … . Franco v Hyatt Corp., 2020 NY Slip Op 07522, First Dept 12-15-20

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE IN THIS CHILD PORNOGRAPHY CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was entitled to a downward departure reducing his risk level from two to one. Defendant was convicted of possession of child pornography. The Court of Appeals has warned that over assessment of the risk should be avoided in child pornography cases:

… A preponderance of the evidence established that scoring under factors three and seven overassessed the risk posed by defendant, and that he should receive a downward departure (see Gillotti, 23 NY3d at 863-64). As the transcript of the federal plea proceeding makes clear, the federal prosecutor characterized defendant’s case as being on the very low end of the child pornography possession spectrum and did not contest a nonincarceratory disposition notwithstanding that the federal guidelines recommended a sentence of 33 to 41 months. The federal district court provided a long explanation on the record of why defendant was deserving of a nonincarceratory disposition, including his lifetime of hard work, his dedication to family, the many character letters provided, and the limited time period in which defendant was actually viewing child pornography. The Probation Department also recommended a nonincarceratory disposition in its presentencing report. An independent psychological evaluation of defendant found no cognitive impairment or compulsion that would suggest that defendant was likely to reoffend. In sum, this is the kind of case that Gillotti envisioned warranting a downward departure in order to avoid overassessing risk by rote application of factors three and seven. People v Gonzalez, 2020 NY Slip Op 07468, First Dept 12-10-20

 

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DEFENDANT WAS REPEATEDLY WARNED HE COULD BE SENTENCED TO 45 YEARS AFTER TRIAL WHEN, IN FACT, HIS SENTENCE WOULD BE CAPPED AT 20 YEARS; DEFENDANT WAS NOT AWARE OF THIS GROUND FOR AN ATTACK ON HIS SENTENCE AND THEREFORE DID NOT NEED TO PRESERVE THE ISSUE FOR APPEAL BY MOVING TO WITHDRAW THE PLEA; PLEA VACATED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, determined defendant’s guilty plea should be vacated because he was under the impression he was avoiding a 45 year sentence when, in fact, he could have been sentenced to a maximum of 20 years. Although defendant did not move to withdraw his plea which is usually required to preserve the issue for appeal, here the defendant had no knowledge of the ground for a motion to withdraw:

… [T]he court repeatedly told defendant that he faced a possible sentence of 45 years, but not that defendant’s sentence would ultimately be reduced to 20 years. …

The Court of Appeals … has carved out an exception to the preservation doctrine, in certain instances. “because of the ‘actual or practical unavailability of either a motion to withdraw the plea’ or a ‘motion to vacate the judgment of conviction,'” reasoning that ” ‘a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge’ ” … . …

Here, the court’s misinformation had great significance. The court repeatedly warned defendant that he could face 45 years in prison if he proceeded to trial on all three of his open burglary cases, and neither the prosecutor nor defense counsel corrected the record. Moreover, defendant, who had already had a failed allocution, did not plead guilty until just before jury selection was to begin, and after the court had repeatedly warned him that he could face as much as 45 years in jail if he proceeded to trial and was convicted. People of the State of New York v Joseph, 2020 NY Slip Op 07472, First Dept 12-10-20

 

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CLAIMANT, AN UNDOCUMENTED IMMIGRANT WITHOUT A SOCIAL SECURITY NUMBER, DEMONSTRATED DILIGENT EFFORTS TO FIND WORK AFTER HE WAS INJURED; THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE DENIED HIS CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board’s denial of benefits to claimant, an undocumented immigrant, over a two-justice dissent, determined claimant had made a sufficient showing of diligent efforts to find work (labor market attachment) after he was injured:

… “[T]he status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers’ compensation benefits” … , unless the worker cannot satisfy statutory requirements … . Likewise, the Board has recognized that an injured worker’s undocumented status “does not eliminate his [or her] need to make a reasonable search for work” … . …

The evidence at the hearing established that claimant attended school through the ninth grade in his country of birth and has exclusively worked in construction, both before coming to the United States at age 23 and for the eight years thereafter, until sustaining the subject injuries while performing heavy lifting at the employer’s construction site. With respect to his attachment to the labor market, claimant submitted completed forms listing 62 businesses to which he applied for work between April and December 2018 as a prep cook, dishwasher, restaurant helper and ironing worker. He identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status. He applied for both non-construction jobs, for which he lacked experience and language skills, and construction jobs, for which he had limited physical abilities due to his injuries. Potential employers informed claimant that (1) they were not hiring, (2) he lacked the requisite experience or (3) they could not hire him without a Social Security number. Claimant produced documentation establishing that he sought assistance from Workforce1, a job location service, which aided him in the preparation of a work-history rÉsumÉ in English; however, despite his willingness to use this service, Workforce1 ultimately advised him that he was unable to use its services for his job search because he lacked a Social Security number. Claimant registered at an adult learning center in order to take English language courses, but was placed on a wait list and, as of the time of the hearing, had yet to be contacted regarding an opening. Matter of Policarpio v Rally Restoration Corp., 2020 NY Slip Op 07442, Third Dept 12-10-20

 

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