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THE WARRANT CORRECTLY DESCRIBED THE PREMISES TO BE SEARCHED AS A SINGLE FAMILY RESIDENCE BASED UPON THE INFORMATION AVAILABLE TO THE POLICE; DEFENDANT’S ALLEGATION THE RESIDENCE WAS ACTUALLY THREE SEPARATE APARTMENTS WAS NOT SUPPORTED BY SWORN AFFIDAVITS; THE MOTION TO SUPPRESS WAS PROPERLY DENIED WITHOUT A HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the defendant’s motion to suppress, alleging the premises to be searched was not adequately described in the warrant, was properly denied without a hearing. The warrant described a single family residence. Defendant alleged each of the three floors was a separate apartment. The Court of Appeals looked only at the evidence supporting the warrant and held the evidence available to the police established the building was a single residence. The defendant did not submit any sworn affidavits in support of the “three apartments” argument, so the motion court properly denied the motion without holding a hearing:

The warrant’s description of the place to be searched as “a private residence,” located at a unique, specified street address, was not facially deficient; given a commonsense reading, the warrant clearly commanded a search of “a” single residence, not a multi-unit building, at the marked street address. Because the warrant was facially sufficient, the case does not implicate the U.S. Supreme Court’s ruling in Groh v Ramirez that courts may not rely on documents not incorporated and attached to the warrant in order to provide particularity that the warrant, on its face, lacks (see 540 US at 557-558). The motion court did not rely on the unincorporated warrant application materials to cure a facial deficiency in the warrant, which Groh forbids. Rather, the court considered those materials for a different purpose—to determine whether the warrant’s description of the place to be searched as a single private residence was supported by the information available to the detective who applied for the warrant and the court that issued the warrant. * * *

In People v Mendoza, we held that a suppression motion’s “factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant’s access to information” (82 NY2d at 422; see also People v Jones, 95 NY2d 721, 729 [2001]). Although [defendant] lacked access to the materials that were before the warrant court, he had ready access to information about the actual conditions of the premises at the time of the search, but failed to provide it in support of his suppression motion. For example, he, his mother, or any other resident of the premises could have provided sworn affidavits or other evidence as to the separateness of the alleged residences on the three floors; the existence of unrelated tenants on the second floor; the obviousness to a visitor that the building contained separate residences—such as allegations that each unit had separate locking entry doors—or a variety of other types of evidence plainly known to residents of the house. People v Duval, 2021 NY Slip Op 00896, CtApp 2-11-21

 

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THE POLICE REMOVED PLAINTIFF’S BOYFRIEND FROM PLAINTIFF’S PREMISES THREE TIMES TELLING PLAINTIFF HE WOULD NOT COME BACK AND SHE WILL BE OKAY; THEN HER BOYFRIEND THREW HER OUT A THIRD FLOOR WINDOW; THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE CITY; THE CITY WAS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined no special relationship had been created between the plaintiff and the city stemming from police officers’ telling plaintiff that her former boyfriend (Gaskin) would be removed from the premises and would not be back. The police responded to plaintiff’s calls when Gaskin showed up three times. On the next occasion, Gaskin threw plaintiff out of a third floor window:

“When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person” … . Such a special duty can arise, as relevant here, where the plaintiff belongs to a class for whose benefit a statute was enacted, or where the municipality voluntarily assumes a duty to the plaintiff beyond what is owed to the public generally … . A municipality will be held to have voluntarily assumed a duty or special relationship with a party where there is: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by establishing that no special relationship existed between them and the plaintiff … . Specifically, the defendants established, prima facie, that the officers made no promise to arrest Gaskin, and the plaintiff could not justifiably rely on vague assurances by the officers that she would “be okay” and that Gaskin would not be returning to the building where both he and the plaintiff lived … . Howell v City of New York, 2021 NY Slip Op 00840, Second Dept 2-10-21

 

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THE AFFIRMATIONS OF DISCONTINUANCE AND CANCELLATION WERE SILENT ON THE ACCELERATION OF THE MORTGAGE DEBT AND THEREFORE DID NOT STOP THE STATUTE OF LIMITATIONS FROM RUNNING; THE FORECLOSURE ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred despite the affirmations of discontinuance and cancellation which were silent on the acceleration of the debt:

“A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” … . As this Court held in Engel, a lender’s mere act of discontinuing an action, without more, does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt … . Rather, in order to be effective as a notice of revocation, the notice must contain an indication that the lender would accept installment payments from the homeowner in satisfaction of his or her prospective monthly payment obligations … .

Here, … the six-year statute of limitations began to run on the entire debt in November 2010, when JP Morgan commenced the prior action to foreclose the subject mortgage. Accordingly, the statute of limitations expired in November 2016, and the instant action, commenced in July 2017, was untimely. Contrary to the Supreme Court’s determination, the affirmations of discontinuance and cancellation did not constitute an affirmative act of revocation, since they are silent on the issue of the election to accelerate, and did not otherwise indicate that JP Morgan would accept installment payments from the borrowers … .  FV-1, Inc. v Palaguachi, 2021 NY Slip Op 00838, Second Dept 2-10-21

 

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COMPLIANCE WITH THE NOTICE REQUIREMENT OF RPAPL 1304 WAS NOT PROVEN IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DETAIL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff mortgage company did not demonstrate compliance with the notice requirements of RPAPL 1304:

RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action … . “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … .

Here, the only purported evidence submitted by the plaintiff in support of its motion to show that it complied with RPAPL 1304 was a hearsay statement in the affidavit of the plaintiff’s legal affairs representative. Moreover, contrary to the plaintiff’s assertions, the 90-day notice which was attached to her affirmation does not demonstrate that the mailing requirements of RPAPL 1304 were met … . The plaintiff failed to submit an affidavit of service or proof of first-class mailing by the United States Postal Service evidencing that the defendant was served by first-class mail in accordance with RPAPL 1304 … . The plaintiff not only failed to provide proof of the actual first-class mailing, but its legal affairs representative also lacked personal knowledge of the purported mailing and did not aver that she was familiar with the mailing practices and procedures of the entity that purportedly sent the notices … . Thus, the plaintiff submitted no evidence that the letter had been sent to the defendant by first-class mail more than 90 days prior to commencement of the action … . 21st Mtge. Corp. v Broderick, 2021 NY Slip Op 00825, Second Dept 2-10-21

 

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THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the lack of informed consent cause of action should not have been dismissed in this dental malpractice action:

To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment, and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (see Public Health Law § 2805-d …). “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, although the injured plaintiff signed a consent form, the defendants submitted in support of their motion, inter alia, a transcript of the injured plaintiff’s deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives … . Xiao Yan Ye v Din Lam, 2021 NY Slip Op 00895, Second Dept 2-10-21

 

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FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER DEEMED A WAIVER OF THE DEFENSE; DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend her answer to add the lack of standing defense. Pursuant to RPAPL 1302-a the failure to include the lack of standing defense in the answer is no longer deemed waiver of the defense:

… [T]he defendant did not waive the affirmative defense of lack of standing. RPAPL 1302-a … provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.” Under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s cross motion which was pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defense of lack of standing … . Further, the defendant’s affidavit was sufficient to raise a triable issue of fact as to whether the plaintiff was the holder or assignee of the note at the time the action was commenced … . In response, the plaintiff failed to demonstrate its standing as a matter of law … . US Bank N.A. v Blake-Hovanec, 2021 NY Slip Op 00893, Second Department 2-10-21

 

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CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY JUDGMENT WHICH IS THE EQUIVALENT OF JUDGMENT AFTER TRIAL; DEFENDANT DOCTORS SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT CVS’S PROVIDING PLAINTIFF’S DECEDENT WITH THE WRONG DOSAGE OF MEDICINE MAY HAVE CONTRIBUTED TO HIS DEATH (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial in this medical malpractice case, determined the jury should not have heard evidence that CVS mistakenly gave plaintiff a double dose of a drug. CVS was a defendant but successfully moved for summary judgment prior to the trial:

… [T]he Supreme Court erred in permitting the jury to hear evidence that CVS Pharmacy, Inc. (hereinafter CVS), mistakenly gave the decedent a double dose of digoxin, and testimony from [defendant] Manvar that the double dose of digoxin predisposed the decedent to an arrhythmia that caused his cardiac arrest. CVS, a defendant in this action, was awarded summary judgment based on its argument that its error in giving the decedent a double dose of digoxin was not a substantial factor in causing the decedent’s cardiac arrest. As summary judgment is the “functional equivalent” of a trial, the court should have precluded [defendants] Huppert and Manvar from presenting evidence at trial that CVS’s negligence may have been a substantial factor in causing the decedent’s cardiac arrest … . Raineri v Lalani, 2021 NY Slip Op 00890, Second Dept 2-10-21

 

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DEFENDANT PLED GUILTY TO DRIVING WHILE IMPAIRED BY DRUGS, NOT ALCOHOL; DIRECTION TO INSTALL AN IGNITION INTERLOCK DEVICE APPLIES ONLY TO OFFENSES INVOLVING ALCOHOL (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the offense to which defendant pled guilty did not involve alcohol and, therefore, the direction to install an ignition interlock device must be vacated:

… [T]he County Court improperly imposed an ignition interlock device requirement upon the defendant. The defendant pleaded guilty to aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2-a)(b) for “[d]riving while ability impaired by drugs” (Vehicle and Traffic Law § 1192[4]). A court may impose an ignition interlock device as a condition of probation and conditional discharge only for offenses involving alcohol (see Penal Law § 65.10[2][k-1]). The defendant’s conviction here falls outside the scope of the statute authorizing the imposition of such a condition … . People v Miller, 2021 NY Slip Op 00868, Second Dept 2-10-21

 

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DETAILED EXPLANATION OF HOW MAILING OF THE RPAPL 1304 NOTICE CAN (SHOULD) BE PROVEN (SECOND DEPT).

The Second Department, in affirming the judgment of foreclosure in favor of Nationstar, offered a detailed explanation of how mailing of the RPAPl 1304 notice can be proven:

The Supreme Court … properly determined that … Nationstar proved sufficient mailing of the statutory 90-day preforeclosure notice as required by RPAPL 1304. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action … . By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, “‘the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing,’ which can be ‘established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure'” … . The notice must also be in 14-point type … . Here, at the framed-issue hearing, Nationstar submitted evidence that a third-party vendor mailed the 90-day preforeclosure notice through the testimony of a witness who had personal knowledge of the vendor’s standard business practice with regard to sending the 90-day preforeclosure notice to borrowers, and who affirmed, based on the business records she reviewed regarding the subject loan, that the notices had been sent to the defendant in compliance with the requirements of RPAPL 1304 … . Notwithstanding the use of a third party to mail the 90-day preforeclosure notice, Nationstar tendered sufficient evidence demonstrating strict compliance with RPAPL 1304. Nationstar Mtge., LLC v Paganini, 2021 NY Slip Op 00852, Second Dept 2-10-21

 

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FAMILY COURT SHOULD HAVE APPOINTED AN ATTORNEY FOR THE CHILDREN IN THIS CONTESTED CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Family Court, determined an attorney should have been appointed for the children in this contested custody matter:

The appointment of an attorney for the child in a contested custody matter is “the strongly preferred practice” … . An attorney for the child “is tasked with advocating for the child’s wishes and best interests, precisely because the child has a real and vital interest in the outcome and a voice that should be heard”… . Nevertheless, the appointment of an attorney for the child “is discretionary, not mandatory” … . In making the determination whether the appointment of an attorney for the child is warranted, courts should consider, inter alia, the age of the child and the possibility of prejudice to the child … .

Here, the Family Court improvidently exercised its discretion in declining to appoint an attorney for the children in light of the ages of the children, ranging from 12 to 16 years old at the time of the hearing, the antagonistic nature of the parties’ relationship, and the parties’ conflicting assertions regarding each other’s conduct … . Matter of Weilert v Weilert, 2021 NY Slip Op 00850, Second Dept 2-10-21

 

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