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DEFENDANT’S MOTION TO RENEW HIS OPPOSITION TO THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; THE BANK HAD ORIGINALLY ALLEGED IT POSSESSED THE NOTE AND THEREFORE HAD STANDING TO FORECLOSE; SUBSEQUENTLY THE BANK SUBMITTED A LOST NOTE AFFIDAVIT IN SUPPORT OF ITS MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to renew his opposition to the bank’s motion for summary judgment should have been granted in this foreclosure action. In support of its summary judgment motion the bank alleged it had standing based upon possession of the note. However, in support of the bank’s subsequent motion to confirm the referee’s report the bank submitted a lost note affidavit:

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]), and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]).

Here, in support of his cross motion for leave to renew, the borrower had a reasonable justification for his failure to present the new facts in opposition to the original motion, since the plaintiff had previously—and unequivocally—represented that the original note was in Investors’ possession, and only later disclosed that the original note had in fact been lost, without providing any further details as to when the search for the note occurred, who conducted the search, and when the note was lost … .

Under these circumstances, the Supreme Court should have granted the borrower’s cross motion for leave to renew and, upon renewal, denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the borrower, to strike his answer and counterclaims, and for an order of reference, based on unresolved issues of fact regarding the plaintiff’s standing … . CitiMortgage, Inc. v Barbery, 2020 NY Slip Op 04377, Second Dept 8-5-20

 

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ALTHOUGH PLAINTIFF BANK DID NOT DEMONSTRATE THE RPAPL 1304 NOTICE WAS MAILED TO DEFENDANT IN THIS FORECLOSURE ACTION, DEFENDANT’S DENIAL OF RECEIPT OF THE NOTICE WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross motion for summary judgment in this foreclosure action should not have been granted. Supreme Court properly found that the bank did not provide sufficient proof that the Real Property Actions and Proceedings Law (RPAPL) 1304 notice was mailed to defendant. But defendant’s mere denial of receipt of the notice was not enough to warrant summary judgment in defendant’s favor:

The plaintiff failed to establish, prima facie, that it mailed the RPAPL 1304 notice, because “the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by an individual with personal knowledge of that procedure” … .

We disagree, however, with the Supreme Court’s determination to grant [defendant] Parker’s cross motion for summary judgment dismissing the complaint insofar as asserted against her. Parker offered only a mere denial of receipt of the RPAPL 1304 notice in support of her cross motion, and such a mere denial is insufficient to establish entitlement to such relief … . Bank of N.Y. Mellon v Parker, 2020 NY Slip Op 04376, Second Dept 8-5-20

 

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WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant New York City Housing Authority’s (NYCHA’s) summary judgment motion in this playground injury case should have been granted. Plaintiff alleged a water sprinkler, in which children could play, was too close to the monkey bars and infant plaintiff was injured falling from the wet monkey bars. However the plaintiff presented evidence that children who were wet from playing in the sprinkler had climbed the monkey bars before infant plaintiff slipped and fell. The Second Department held that finding the NYCHA negligent would have to be based upon speculation:

The infant plaintiff testified at a General Municipal Law § 50-h hearing and his deposition that the wind was pushing water from the sprinkler to the monkey bars. However, the infant plaintiff also testified at his deposition that, immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … . Given the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars … .

The affidavit of the infant plaintiff to the effect that the ladder was wet before the wet children climbed on it “presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony” that he did not see that the ladder was wet before he climbed on it … .  Wilson v New York City Hous. Auth., 2020 NY Slip Op 04427, Second Dept 8-5-20

 

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REFEREE’S FINDINGS WERE BASED UPON HEARSAY PROVIDED BY THE BANK IN THIS FORECLOSURE ACTION; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The report was based upon hearsay provided by the bank and therefore the referee’s findings were not supported by the record:

The Supreme Court should have denied the plaintiff’s motion, in effect, to confirm the referee’s report and for leave to enter a judgment of foreclosure and sale. In support of its motion, the plaintiff relied upon the affidavit of a representative of its loan servicer, who attested, based upon his review of the servicer’s books and records, to the amount due under the mortgage loan. However, the plaintiff’s affiant failed to annex or otherwise produce the subject business records. Under the circumstances, the affidavit relied upon by the plaintiff constituted inadmissible hearsay and lacked probative value, and the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Bank of N.Y. Mellon v Fontana, 2020 NY Slip Op 04375, Second Dept 8-5-20

 

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FORECLOSURE ACTION ON THE ENTIRE DEBT TIME-BARRED; QUESTION OF FACT WHETHER THE DEBT WAS DE-ACCELERATED; IF SO, ONLY THOSE INSTALLMENT PAYMENTS DUE WITHIN SIX YEARS OF THE START OF THE FORECLOSURE ACTION ARE RECOVERABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the foreclosure action on the entire debt was time-barred, but there was a question of fact whether the debt was de-accelerated such that the installment payments due during the six years prior to the commencement of the action were recoverable by the plaintiff bank (Chase):

… [T]he defendants demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on July 7, 2009, when Chase accelerated the mortgage debt and commenced the prior foreclosure action … . Since the plaintiff did not commence the instant foreclosure action until more than six years later, on January 28, 2016, the defendants sustained their initial burden of demonstrating, prima facie, that the action was untimely … .

… [T]he plaintiff tendered evidence that, in May 2015, it sent letters to each of the defendants that purported to de-accelerate the entire debt … . However, such evidence is sufficient only to raise a question of fact as to whether those causes of action that sought unpaid installments which accrued within the six-year period of limitations preceding the commencement of this action (see CPLR 213[4] …) are barred by the statute of limitations due to this alleged de-acceleration by the plaintiff. Since the plaintiff failed to tender any evidence to rebut the defendants’ showing that the statute of limitations bars the causes of action relating to unpaid mortgage installments which accrued on or before January 27, 2010, the Supreme Court should have granted that branch of the defendants’ motion which was to dismiss those causes of action. U.S. Bank Trust, N.A. v Miele, 2020 NY Slip Op 04422, Second Dept 8-5-20

 

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THE SELLER WAS NOT OBLIGATED TO EXERCISE AN OPTION IN THE RESTRICTED REMEDIES CLAUSE OF THE REAL ESTATE PURCHASE CONTRACT BECAUSE THE BUYER NEVER DEMANDED SPECIFIC PERFORMANCE OF THE CONTRACT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirming Supreme Court and noting that a motion to dismiss for failure to state a cause of action may be brought at any time, determined the motion to dismiss this action for specific performance of a real estate purchase agreement was properly granted. The buyer argued it was entitled to specific performance because the seller was required to exercise one of the remedies described in the restricted remedies clause of the purchase agreement. The court disagreed and held the buyer never in fact demanded specific performance. Rather, the buyer indicated it would not close unless the seller remedied a tax misclassification and lowered the purchase price:

Supreme Court properly considered the seller’s post note of issue CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action because it can be made at any time (CPLR 3211[e]). Thus, CPLR 3212(a)’s requirement of demonstrating good cause for the delay does not apply … . * * *

… .[T]he buyer maintains that Supreme Court erred in dismissing that claim by misreading Mehlman v 592-600 Union Ave. Corp. (46 AD3d 338 [1st Dept 2007]) in applying the contract’s restricted remedy clause against it. That clause expressly and strictly limited the buyer to two remedies in the event the seller was unable to convey title to the premises pursuant to the terms of the contract: (i) terminate the contract and receive its down payment or (ii) consummate the transaction with a $25,000 credit to remedy any title issue. The buyer argues that our holdings in Mehlman and 101123 LLC v Solis Realty LLC (23 AD3d 107 [1st Dept 2005]) obligate the seller to concede the title defect and demand that the buyer exercise one of the options set forth in the restricted remedies clause at the closing, and that the seller’s failure to satisfy this obligation enables the buyer to maintain its specific performance claim. * * *

…  [A] seller unable to convey clear title for reasons contemplated in the parties’ contract is entitled to invoke the restricted remedies clause in response to a buyer’s demand for specific performance of the parties’ contractual terms. Here, the buyer’s allegations unmistakably demonstrate that it did not demand specific performance from the seller to convey title as alleged in the complaint, namely, by conveying title in accordance with the seller’s contractual representation that there were no negative tax issues associated with the premises. Instead, the buyer alleged in its complaint that it was ready, willing and able to close provided that the seller, inter alia, corrected the tax misclassification and reduced the purchase price to address the tax liabilities arising from the misclassification. In fact, the allegations underlying the claim demonstrate the complete absence of a demand for specific performance of the parties’ contract. Rather, according to those allegations, the buyer’s demand would result only if the seller did not comply with the buyer’s condition to close. These allegations, as a matter of law, demonstrate that the seller was not obligated to invoke the restricted remedies clause. Thus, under these circumstances, the buyer is precluded from seeking from the seller specific performance of their contract. M&E 73-75, LLC v 57 Fusion LLC, 2020 NY Slip Op 04372, First Dept 7-30-20

 

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RESTITUTION ORDERED WAS GREATER THAN THAT AGREED TO IN THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; RESTITUTION VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating the restitution award in the interest of justice, determine the restitution ordered was not that agreed to in the plea agreement:

Defendant contends that Supreme Court improperly enhanced the sentence by ordering him to pay restitution in an amount greater than what was agreed to under the plea agreement. The record supports his claim, and the People concede that the restitution award should be reduced. Although defendant failed to preserve his claim by requesting a hearing or objecting to the amount of restitution at sentencing, we deem it appropriate to take corrective action in the interest of justice … . As defendant was not sentenced in accordance with the plea agreement, the matter must be remitted to Supreme Court to provide defendant with the opportunity to either accept the sentence with the enhanced restitution award or withdraw his guilty plea … . In addition, as Supreme Court failed to set forth the time and manner of payment of the amount of restitution in the restitution order, this omission must also be addressed upon remittal … . People v Gravell, 2020 NY Slip Op 04344, Third Dept 7-30-20

 

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PLAINTIFF’S DECEDENT’S MEDICAL MALPRACTICE AND WRONGFUL DEATH ACTIONS WERE NOT TIME-BARRED, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death causes of action on behalf of decedent should not have been dismissed as time-barred:

The plaintiff’s decedent died due to complications related to cancer on August 29, 2015. On May 26, 2016, the plaintiff commenced this action to recover damages for wrongful death and medical malpractice against, among others, the defendants Forest Hills Hospital (hereinafter FHH) and Sergio Martinez, a physician (hereinafter together the defendants). As is relevant to these appeals, the complaint alleged negligent acts and omissions by the defendants related to the decedent’s hospitalization at FHH from July 30, 2013, to August 1, 2013. After joinder of issue, Martinez and FHH separately moved pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of malpractice committed before November 26, 2013, insofar as asserted against each of them. … Supreme Court granted the defendants’ separate motions. …

We disagree with the Supreme Court’s determination that the statute of limitations barred causes of action to recover damages for medical malpractice that accrued prior to November 26, 2013 (i.e., 2½ years before the date the action was commenced), rather than February 28, 2013 (i.e., 2½ years before the date of the decedent’s death) (see EPTL 5-4.1 …). Since, at the time of his death, the decedent had a valid cause of action to recover damages for medical malpractice based upon acts or omissions occurring on or after February 28, 2013, and since the wrongful death cause of action was commenced within two years of the date of his death, the wrongful death cause of action was timely commenced … . Accordingly, any causes of action to recover damages for medical malpractice that accrued on or after February 28, 2013 (i.e., within 2½ years of the decedent’s death), including the decedent’s July 2013 hospitalization, were timely. Further, the plaintiff then had one year from the decedent’s death to assert a cause of action alleging conscious pain and suffering (see CPLR 210[a]; …). Perez v Baez, 2020 NY Slip Op 04329, Second Dept 7-29-20

 

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HEARSAY DID NOT PROVE BANK HAD STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence submitted by plaintiff bank to establish standing in this foreclosure action was inadmissible hearsay:

“… [T]he plaintiff submitted the affidavit of a foreclosure specialist for Seterus, Inc. (hereinafter Seterus), which purports to be a subservicer for the Federal National Mortgage Association as assignee of the plaintiff as assignee of OneWest. The affidavit constitutes inadmissible hearsay, as the foreclosure specialist did not attest that he had personal knowledge of OneWest’s business practices and procedures … , or that any records provided by OneWest were incorporated into Seterus’s own records … , and also did not submit any documents to show that OneWest possessed the note at the time of the commencement of this action (see CPLR 4518[a] …). Since the foreclosure specialist also failed to establish a foundation to show that he had personal knowledge as to whether OneWest possessed the note prior to commencement of the action (see CPLR 3212[b] …), the plaintiff failed to establish its standing. The documents attached to the affirmation of counsel for the plaintiff are inadmissible hearsay as counsel failed to establish a foundation for admission of such documents as business records and the foreclosure specialist’s affidavit does not reference the records attached to counsel’s affirmation … . Moreover, even if a proper foundation for the admissibility of the business records had been established, the submitted documents do not show that OneWest had ownership of and the right to enforce the note at the time of the commencement of the action … . The plaintiff also failed to show OneWest’s standing based upon a purported written assignment of the mortgage from MERS [Mortgage Electronic Registration system] to OneWest, as the plaintiff did not demonstrate that MERS had the authority to assign the note …”. Ocwen Loan Servicing, LLC v Schacker, 2020 NY Slip Op 04313, Second Dept 7-29-20

 

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DEFENDANTS’ CONCLUSORY AND UNSUBSTANTIATED CLAIMS DID NOT REBUT THE SWORN ALLEGATIONS OF PROPER SERVICE AND MAILING OF THE SUMMONS, COMPLAINT AND REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1303 NOTICE IN THIS FORECLOSURE ACTION; THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the complaint in the foreclosure action on the ground defendants were never served should not have been granted:

… [T]he affidavit of service contained sworn allegations reciting that service was made upon Simone Cohen at 4:48 p.m. on March 3, 2009, by delivering to her the summons, complaint, and notice required by RPAPL 1303 at the subject property. The affidavit of service included a description of Simone Cohen. Another affidavit of service of the same process server contained sworn allegations reciting that service was made upon Avi Cohen by delivering a copy of the relevant papers to “SIMONE COHEN (WIFE),” a person of suitable age and discretion, at 4:48 p.m. on March 3, 2009, at the subject property, “[s]aid premises being the Defendant’s dwelling place within the State of New York,” and described Simone Cohen as above. The process server further averred that on March 4, 2009, he mailed those documents to Avi Cohen at the address of the subject property “by depositing a true copy of the same in a postpaid, properly addressed envelope in a[n] official depository under the exclusive care and custody of the United States post office.” Two additional affidavits of service recited that on March 4, 2009, copies of the summons were mailed to each defendant at the subject property.

Contrary to the determination of the Supreme Court, the defendants’ submissions failed to rebut the affidavit of service, since they stated only that Simone Cohen could not have been present at the time of the alleged service since she picked up her children from school every Tuesday and that she could not have understood or answered the process server’s questions or understood the import of the legal papers since she was not proficient in English. The defendants’ conclusory and unsubstantiated submissions did not rebut the sworn allegation that a person fitting the physical description of Simone Cohen was present at the residence at the time and accepted service … . Moreover, Avi Cohen did not deny that he received the papers in the mail and thus did not overcome the inference of proper mailing that arose from the affidavit of service … . Nationstar Mtge., LLC v Cohen, 2020 NY Slip Op 04312, Second Dept 7-29-20

 

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