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THE STATE HAS NOT PREEMPTED A MUNICIPALITY’S ABILITY TO REGULATE THE PROCESSING OF WASTE; THEREFORE, EVEN THOUGH THE STATE HAD ISSUED A PERMIT ALLOWING THE PROCESSING OF 500 TONS OF WASTE PER DAY, THE VILLAGE’S ACTION FOR A PERMANENT INJUNCTION REDUCING THE ALLOWED AMOUNT OF WASTE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s request for a preliminary injunction limiting the amount of waste that could be processed by defendant recycling company was properly denied, but the action seeking a permanent injunction should not have been dismissed. The Department of Environmental Conservation (DEC) had issued a temporary emergency permit allowing the defendant to process 1100 tons of waste per day and the defendant applied to make 1100 tons per day permanent. The village sought an injunction imposing the 2008 limit of 370 tons per day. While the preliminary injunction was pending, the DEC issued a permit imposing a daily waste limit of 500 tons per day, which obviated the need for the preliminary injunction. But, because the state has not preempted the ability of a municipality to regulate the amount of waste, the permanent injunction action should not have been dismissed:

… [T]he Supreme Court erred in determining, in effect, that it did not have the authority to issue declaratory or injunctive relief limiting the maximum amount of waste that could be processed at the facility in an amount less than that permitted by the DEC. Indeed, “the State has not preempted local legislation of issues related to municipal solid waste management” … . Thus, the DEC’s issuance of the 2016 renewal permit did not per se preclude the court from considering the merits of the causes of action asserted in the Village’s complaint. * * *

… [A]s a practical matter, the DEC’s issuance of the [500 ton per day] permit largely obviated the need for an order preliminarily enjoining the defendants … . … However, the Supreme Court had an insufficient legal or factual basis, at this preliminary stage, to deny the Village’s request for permanent injunctive relief precluding [defendant] from exceeding the 2008 limits. Indeed, if the Village is ultimately able to establish, at trial, that the defendants breached the terms of a prior agreement entered into between the Village and [defendant], or that the facility’s operation in excess of the 2008 limits constitutes a nuisance, or that the facility is operating in violation of the Village’s zoning code, then the Village may well be entitled to permanent injunctive relief as an appropriate remedy … . Incorporated Vil. of Lindenhurst v One World Recycling, LLC, 2020 NY Slip Op 05037, Second Dept 9-23-20

 

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A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, noting prior decisions to the contrary should no longer be followed, determined a party’s hearsay admission in an uncertified police report is not admissible. Therefore, plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted:

At the first level of hearsay, the report itself must be admissible. A properly certified police accident report is admissible where “the report is made based upon the officer’s personal observations and while carrying out police duties” … . CPLR 4518(c) provides that the foundation for the admissibility of, inter alia, the records of a department or bureau of a municipal corporation or of the state may be laid through a proper certification … . CPLR 4518(c) “is governed by the same standards as the general business record exception” … . Thus, the certification must “set forth” … that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518[a]). * * *

Although a line of cases from our Court held that an uncertified police report constitutes inadmissible hearsay … , a separate line of cases anomalously espoused a carve-out to that rule, holding that a party’s admission in an uncertified police report is admissible against that party. Although a party’s admission is an exception to the hearsay rule … , it is not logically consistent to hold that such admission may be received into evidence where the business record containing the purported admission is not itself in admissible form. Stated differently, a party’s admission contained within a police accident report may not be bootstrapped into evidence if a proper foundation for the admissibility of the report itself has not been laid. Yassin v Blackman, 2020 NY Slip Op 05090, Second Dept 9-23-20

 

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EVIDENCE SUBMITTED IN PLAINTIFF BANK’S REPLY PAPERS PROPERLY CONSIDERED; THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE AGREEMENT WAS INSUFFICIENT; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s reply papers were properly considered but plaintiff did not submit sufficient proof that a condition precedent in the mortgage agreement, re: notice of default, was complied with:

… [T]he Supreme Court providently exercised its discretion in considering the affidavit of the plaintiff’s employee Jeremiah Herberg, which was submitted with the plaintiff’s papers in opposition to the defendant’s cross motion and in further support of its motion … . Although “‘[a] party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply . . . , there are exceptions to the general rule, including . . . when the other party is given an opportunity to respond to the reply papers'” … . Here, the defendant had the opportunity to address the Herberg affidavit in her reply papers in further support of her own cross motion.

However, the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in section 22 of the mortgage agreement regarding the notice of default. The plaintiff’s submissions did not establish that the notice was sent by first class mail or actually delivered to the notice address, as required by the terms of the mortgage agreement … . Furthermore, Herberg’s affidavit failed to lay a proper foundation for the admission of records concerning the plaintiff’s mailing of the notices of default (see CPLR 4518[a] …). Wells Fargo Bank, N.A. v McKenzie, 2020 NY Slip Op 05086, Second Dept 9-23-20

 

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE IT TOOK ACTION TO ENTER A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE ACTION SHOULD HAVE BEEN DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (c) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence that it commenced proceedings to enter a default judgment within one year of the default. Therefore the bank had abandoned the action:

… [T]he plaintiff … relies upon two pages in the record. The first of those two pages is a “CamScanner” copy of the face sheet of a proposed order of reference reflecting the caption of this action, a blank line over the words “(ORD OF REF) FEE PAID,” and a pagination of “Page 1 of 2.” The page is devoid of markings that it was ever presented to any Justice of the Supreme Court as no name is written next to “Hon.” above the caption, and no presentment date is reflected in the blank spaces at the upper right-hand corner of the document where the date and month of presentments are typically identified. There is nothing that indicates that this document was ever filed with the court. The second “CamScanner” page relied upon by the plaintiff, delineated as “Page 2 of 2,” reflects what appears to be either a 2010 or 2019 date stamp, in an unreadable month and date, at 12:07 p.m., with two looping lines that may or may not be a penned signature. The date stamp does not identify it as being placed upon the document by any particular person, entity, or court, and does not contain the word “Filed.” Both of the pages relied upon by the plaintiff contain in their lower right-hand corners the notation “Printed: 10/5/20,” without a full readable year. No other pages comprising the purported proposed order of reference were provided, though the first page, which ends in mid-sentence, is clearly not the entirety of the document.

Since CPLR 3215(c) provides that courts “shall” dismiss actions as abandoned where the plaintiff fails to take proceedings within one year after a default “unless sufficient cause is shown,” the burden was upon the plaintiff to establish sufficient cause as to why the complaint should not be dismissed in this instance … . Here, the burden was not met. HSBC Mtge. Corp. v Hasan, 2020 NY Slip Op 05036, Second Dept. 9-23-20

 

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A CAUSE OF ACTION MAY BE DISMISSED PURSUANT TO CPLR 3211 (a) (4) BECAUSE IT SEEKS THE SAME RELIEF AS A PENDING ACTION INVOLVING THE SAME PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cause of action should have been dismissed pursuant CPLR 3211 (a) (4) because it involved the same parties and sought the same relief as a pending action. The actions involved common charges for condominiums:

Pursuant to CPLR 3211(a)(4), a party may move to dismiss a cause of action on the ground that “there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” “‘It is not necessary that the precise legal theories presented in the first action also be presented in the second action as long as the relief . . . is the same or substantially the same'” … . “‘The critical element is that both suits arise out of the same subject matter or series of alleged wrongs'” … .

We disagree with the Supreme Court’s exercise of its discretion in denying that branch of [the] cross motion which was for relief pursuant to CPLR 3211(a)(4). The … [actions] arise out of the same events, and involve overlapping questions of law, namely, the authority of the Board to charge … the increased common charges and assessments. The business judgment rule does not shield a condominium board’s acts of “bad faith and self-dealing” … . … [T]he resolution of [the] causes of action against the Board, which include, among other things, a request for a judgment declaring that the Board’s common charge increases were not valid, may moot the instant action to foreclose upon the common charge liens … . Further, absent relief under CPLR 3211(a)(4), [there would be] duplicative litigation and the prospect of inconsistent results. Board of Mgrs. of the 1835 E. 14th St. Condominium v Singer, 2020 NY Slip Op 05026, Second Dept 9-23-20

 

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A COMPONENT OF A TOWER CRANE WAS BEING HOISTED WHEN IT SWUNG TO THE SIDE AND PINNED PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON A LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on a Labor Law 241(6) cause of action:

The injured plaintiff allegedly was injured in the process of hoisting a component of the tower crane for assembly when the load, which had been stationary for several minutes, suddenly moved, swung to the side, struck the injured plaintiff, and pinned him against a plumber’s pipe. * * *

… [T]he plaintiffs were entitled to summary judgment on the issue of liability on so much of the Labor Law § 241(6) cause of action as was predicated upon a violation of 12 NYCRR 23-8.1(f)(2)(i). The plaintiffs established, prima facie, that the load suddenly moved and caused the injured plaintiff’s injuries (see 12 NYCRR 23-8.1[f][2][i] … ). In opposition, the defendants failed to raise a triable issue of fact, as “[t]he fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in his favor” … , and “[a]ny comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)” … . Wein v East Side 11th & 28th, LLC, 2020 NY Slip Op 05085, Second Dept 9-23-20

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JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT WARRANTED; NO EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the sua sponte dismissal of the foreclosure complaint should have been granted:

… [I]n a status conference order … , the Court Attorney Referee … directed the plaintiff to file an application seeking an order of reference by the date of the final status conference. Following the final status conference … , the Court Attorney Referee … determined that the plaintiff failed to show good cause for its failure to move for an order of reference as directed, and recommended that the action be dismissed. … [T]he Supreme Court directed dismissal of the complaint. …

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint … . Indeed, at the time the plaintiff was directed to file an application for an order of reference, an order of reference, as well as a judgment of foreclosure and sale, had already been issued. Bank of N.Y. v Ramirez, 2020 NY Slip Op 05024, Second Dept 9-23-20

 

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MOTION TO DISMISS THE BREACH OF CONTRACT ACTION BASED ON DOCUMENTARY EVIDENCE PURSUANT TO CPLR 3211 (a)(1) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant condominium-board-of-managers’ motion to dismiss plaintiff condominium-owner’s complaint based on documentary evidence should have been granted:

The plaintiff commenced this action against the defendant Board of Managers … (hereinafter the Board) … challenging the Board’s allocation of common expenses, after the Condominium’s first year of operation, in accordance with the first-year budget set forth in the Condominium offering plan. The plaintiff alleged that this method of allocating common expenses following the Condominium’s first year was a breach of the Board’s contractual duties and resulted in an overassessment of common charges to the plaintiff. * * *

As to the breach of contract cause of action, “[t]o succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, the Condominium offering plan, declaration, and bylaws (hereinafter collectively the governing documents) utterly refuted the plaintiff’s factual allegations and conclusively established a defense as a matter of law to the breach of contract cause of action. In particular, the plaintiff admitted in the amended complaint that the common charges assessed to its unit since the inception of its ownership have been in accordance with the allocations set forth in “Schedule B — First Year’s Budget,” contained in the offering plan. The plaintiff’s allegation that the Board was obligated to reallocate the common expenses after the first year of the Condominium’s operation, based upon an assessment of the commercial unit owners’ actual use of and benefit from the services and other items covered by the common expenses, is refuted by the governing documents. Those documents do not provide for an assessment of actual use and benefits, but rather, specify that, on at least a yearly basis, the Board will “allocate and assess [the] Common Charges amongst the Unit Owners in accordance with allocations set forth in the First Year’s Budget.” 189 Schermerhorn Owners Co., LLC v Board of Mgrs. of the Be@Schermerhorn Condominium, 2020 NY Slip Op 05021, Second Dept 9-23-20

 

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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PLAINTIFF BANK DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; DEFENDANT’S MERE DENIAL OF RECEIPT OF THE NOTICE DID NOT WARRANT SUMMARY JUDGMENT IN DEFENDANT’S FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the RPAPL 1304 notice requirements and, therefore, the bank’s motion for summary judgment in this foreclosure action should not have been granted. Defendant’s denial of receipt of the RPAPL 1394 notice, however, was not enough to warrant summary judgment in favor of defendant:

“‘Although not jurisdictional, proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition'” … . …

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to [defendant], the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that the plaintiff properly sent the notice by registered or certified mail and first-class mail pursuant to RPAPL 1304 … . Since the plaintiff failed to provide evidence of the actual mailing, or evidence 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 plaintiff failed to establish its strict compliance with RPAPL 1304 … . TD Bank, N.A. v Roberts, 2020 NY Slip Op 05074, Second Dept 9-23-20

 

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