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THE LATE SUMMARY JUDGMENT MOTION AND THE EXCUSE OFFERED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the late summary judgment motion and an excuse offered in reply papers should not have been considered:

Pursuant to CPLR 3212, courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” … . As a general matter, a court should not consider a good cause argument proffered by a movant if it is presented for the first time in reply papers … . Here, it is undisputed that the defendant moved for summary judgment approximately 30 days after the date set by the Supreme Court without seeking leave of the court or offering an explanation showing good cause for the delay in their moving papers. As a result, the court improvidently exercised its discretion in considering that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted against it and in considering the good cause arguments raised for the first time in the defendant’s reply papers … . O’Neil v Environmental Prods. Corp., 2020 NY Slip Op 05516, Second Dept 10-7-20

 

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THE REFEREE RELIED ON HEARSAY TO DETERMINE THE AMOUNT OWED IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence relied upon by the referee to determine the amount owed to plaintiff bank in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule. The bank’s motion for summary judgment should not have been granted:

With respect to the amount due to the plaintiff, the referee based his findings on an affidavit of Jillian Thrasher, a vice president of Ocwen Loan Servicing, LLC (hereinafter Ocwen), the servicer of the subject loan. …

“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, Thrasher’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because she failed to attest that she was personally familiar with the record-keeping practices and procedures of her employer, Ocwen, the entity that generated the subject business records. Accordingly, she failed to demonstrate that the records relied upon in her affidavit were admissible under the business records exception to the hearsay rule … . Thus, Thrasher’s affidavit, upon which the referee relied, “constituted inadmissible hearsay and lacked probative value” on the issue of the amount due and owing to the plaintiff, including the amount of interest due for the relevant period … , and the Supreme Court erred in confirming the report. The error in relying on hearsay evidence was not harmless, as the referee’s determination is not substantially supported by other evidence in the record … . IndyMac Fed. Bank, FSB v Vantassell, 2020 NY Slip Op 05495, Second Dept 10-7-20

 

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AFTER OBTAINING AN UNPAID JUDGMENT AGAINST THE INSURED, PLAINTIFF PROPERLY SUED THE INSURER WHICH HAD DISCLAIMED COVERAGE ALLEGING THE INSURED HAD REFUSED TO COOPERATE; THE PROOF OF THE INSURED’S ALLEGED FAILURE TO COOPERATE WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE INSURER WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a comprehensive decision explaining the law, determined plaintiff properly sued the defendant’s insurer after obtaining an unpaid judgment against the insured. The insurer argued it had properly disclaimed coverage because the insured did not cooperate by answering questions. However, the insurer’s submissions did not demonstrate the insured’s failure to cooperate and plaintiff was entitled to summary judgment against the insurer:

[The] statutory right, presently codified at Insurance Law § 3420, among other things, “grants an injured party a right to sue the tortfeasor’s insurer, but only under limited circumstances—the injured party must first obtain a judgment against the tortfeasor, serve the insurance company with a copy of the judgment and await payment for 30 days” … . “Compliance with these requirements is a condition precedent to a direct action against the insurance company” … . * * *

Here, the insurer contended that [the insured’s] principal, Michael Stoicescu, refused to cooperate and thereby breached the subject policy. The insurer did not allege that any other individuals associated with [the insured]  failed to cooperate. Although the insurer claimed that Stoicescu refused to cooperate in the underlying action, it is undisputed that he appeared for an examination before trial where he testified at length … . The insurer failed to identify any information that Stoicescu refused to disclose, or any document that he refused to provide in connection with the underlying action … . The insurer’s contention that Stoicescu refused to respond to certain telephone calls and letters was insufficient to show “an attitude of willful and avowed obstruction” … . Furthermore, although the insurer submitted evidence to show that, after years of litigation, Stoicescu had stated during one or more telephone calls that he would not attend a trial in the underlying action, any such statements were made before a date for the trial had even been set … , and the insurer did not allege that Stoicescu actually failed to appear for any required court appearance … . DeLuca v RLI Ins. Co., 2020 NY Slip Op 05487, Second Dept 10-7-20

 

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THE BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF STANDING OR COMPLIANCE WITHE THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANKS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence of standing to bring the foreclosure action and compliance with the RPAPL 1304 notice requirements:

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the employee of the plaintiff’s loan servicer stated in her affidavit, which was submitted by the plaintiff in support of its motion, that the plaintiff was the holder of the note, she never stated that the plaintiff was the holder of the note at the time the action was commenced … . Further, the plaintiff failed to establish that the note was attached to the complaint at the time of the commencement of the action … . …

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because the employee of the plaintiff’s loan servicer, in her affidavit, failed to assert personal knowledge of the purported mailing or make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures in order to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Bank of Am., N.A. v Palacio, 2020 NY Slip Op 05480, Second Dept 10-7-20

 

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COUNTY COURT SHOULD HAVE FURTHER RESTRICTED DISCOVERY FOR THE PROTECTION OF WITNESSES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined certain aspects of the People’s application to restrict discovery for witness safety should have been granted:

… [T]he application to vacate or modify the order … is granted to the extent that the order is modified by deleting the provision thereof granting the People’s motion for a protective order only to the extent that the People may withhold the name of the confidential informant until 15 days prior to a scheduled pre-trial hearing or trial, and substituting therefor a provision granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Jeanty, 2020 NY Slip Op 05555, Second Dept 10-7-20

 

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PLAINTIFF HOMEOWNERS’ ACTION AGAINST THE INSURER FOR BREACH OF CONTRACT, FRAUD AND NEGLIGENCE SHOULD HAVE BEEN DISMISSED; PLAINTIFF ACKNOWLEDGED THE HOME WAS VACANT WHEN THE POLICY WAS PURCHASED AND AT THE TIME OF THE FIRE AND THE POLICY EXCLUDED COVERAGE FOR VACANT PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s motion for summary judgment in this “disclaimed coverage” case should have been granted. Plaintiff homeowner acknowledged the home had been vacant and was vacant at the time of the fire. Plaintiff’s allegation that the insurance agent was aware the house was vacant when the policy was purchased was rejected because plaintiff was deemed to have read the policy (which excluded coverage for vacant property):

The defendants demonstrated, prima facie, that the policy only provided coverage if the premises were used as a residence by the plaintiffs and that the plaintiffs never resided at the premises during the policy period … . * * *

“The element of justifiable reliance is ‘essential’ to any fraud claim” … . Here, the defendants established, prima facie, that any reliance by [plaintiff] on an alleged misrepresentation made by [the insurance agent] was not justifiable since [plaintiff] testified that he received a copy of the policy when it was issued in August 2010, and again in 2011, when it was renewed … . …

The defendants made a prima facie showing of their entitlement to judgment as a matter of law dismissing [the negligence] cause of action by submitting evidence which demonstrated that [plaintiff] only made a general request for homeowner’s insurance, and did not specifically request coverage for premises that were not owner occupied … , and that no special relationship existed between the parties … . Waknin v Liberty Ins. Corp., 2020 NY Slip Op 05551, Second Dept 10-7-20

 

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SALARIES OF UNDERCOVER POLICE OFFICERS NOT SUBJECT TO DISCLOSURE PURSUANT TO A FREEDOM OF INFORMATION LAW REQUEST (FIRST DEPT).

he First Department, reversing (modifying) Supreme Court, determined the salary of undercover police officers should not be disclosed:

FOIL provides that “[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]), with exceptions not raised here. Accordingly, respondent is not obligated to compile “aggregate data” “from the documents or records in its possession” … .

In any event, the information sought as to the salaries of undercover police officers, whether aggregated or individualized, is exempt from disclosure under FOIL’s public safety exemption (Public Officers Law § 87[2][f]). Respondent met its burden of making a particularized showing that publicly releasing this information would create “a possibility of endangerment” to the public’s safety … . Respondent submitted an affidavit of the Undercover Coordinator of the New York City Police Department (NYPD) establishing that this information could be used to estimate the total number of undercover officers employed by NYPD. The analysis of petitioner’s request must consider not only the instant FOIL request for information as to fiscal year 2017, but also future requests which could be made for equivalent information as to other years. Such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could “undermine their deterrent effect, hamper NYPD’s counterterrorism operations, and increase the likelihood of another terrorist attack” … . Respondent’s past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive. Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 2020 NY Slip Op 05449, First Dept 10-6-20

 

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COUNTY COURT’S ORDER MODIFIED TO ALLOW WITHHOLDING THE NAMES OF THE CONFIDENTIAL INFORMANT AND UNDERCOVER OFFICERS UNTIL TRIAL AND RESTRICTING ACCESS TO THE AUDIO AND VIDEO RECORDINGS OF THE NARCOTICS SALES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the name of the confidential informant can be withheld until trial, the names of the undercover officers can be withheld until trial, and audio and video recordings of the narcotics sales can only be shown to defense counsel at the prosecutor’s office:

… [T]he order is modified by … granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Singh, 2020 NY Slip Op 05479, Second Dept 10-6-20

 

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ALTHOUGH COUNSEL’S FAILURE TO IDENTIFY THE PROPER PARTY TO SUE WAS ARGUABLY NOT EXCUSABLE, THE DEFENDANT HAD TIMELY KNOWLEDGE OF THE NATURE OF THE ACTION AND WAS NOT PREJUDICED BY THE DELAY; THE APPLICATION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this slip and fall case should have been granted. Although the excuse for not filing on time was not a good one, counsel’s failure to identify the proper party to sue, the defendant had timely knowledge of the nature of the action:

Although counsel’s error in identifying the proper party was arguably not excusable, the error was not due to any fault or delay on the part of petitioner, and “[t]he failure to set forth a reasonable excuse is not, by itself, fatal to the application” … . This is particularly true where, as here, the record shows that respondents received timely and actual notice of the essential facts underlying plaintiff’s claim … .

Here, the incident report gave respondents actual knowledge of the pertinent facts constituting the claim. The report makes clear that petitioner fell on the sidewalk, and the photographs contained in the report show that the sidewalk is cracked and raised, presenting a tripping hazard … . Furthermore, according to petitioner’s 50-h testimony, her fall was notable enough that a security guard immediately called his supervisor to the scene, and there is no indication that respondents are prejudiced by the delay … . English v Board of Trustees of the Fashion Inst. of Tech., 2020 NY Slip Op 05450, First Dept 10-6-20

 

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THERE WAS A QUESTION OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE OF A RECURRING ICY CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive knowledge of a recurring icy condition where plaintiff allegedly slipped and fell. Plaintiff slipped after leaving a tenant’s apartment. The tenant testified at a deposition:

… [P]laintiff submitted, inter alia, the deposition testimony of the tenant that she had treated on the day of the incident. The tenant testified that, “basically[,] what happens is there’s a lot of runoff from the ground over here. When the snow melts the whole area gets flooded and then it freezes, and then you have a solid sheet of ice pretty much over these last few blocks of the sidewalk and then down in the end, right at the end where the parking lot meets the sidewalk. I’ve actually contacted management many times in regards to that issue.” The tenant further testified that, when he contacted the property manager on such occasions prior to the incident, he was told that there was nothing that could be done because “the snow melts, thaws and freezes, and there’s nothing [*2]they can do about water.” He also noted that he had been living at the property for 11 years, and no steps had been taken during that time to eliminate water from pooling on the sidewalk. Monnin v Clover Group, Inc., 2020 NY Slip Op 05325, Fourth Dept 10-2-20

 

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