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ALTHOUGH DEFENDANT PROVED IT IS ENGAGED IN THE BUSINESS OF LEASING VEHICLES AND THE VEHICLE INVOLVED IN THE TRAFFIC ACCIDENT WAS LEASED AT THE TIME, DEFENDANT DID NOT PROVE THE CONDITION OF THE VEHICLE; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT UNDER THE GRAVES AMENDMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the truck rental company’s (MTLR’s) motion for summary judgment in this traffic accident case should not have been granted. Although MTLR proved that the truck was rented out at the time of the accident, it failed to offer any proof of the condition of the truck:

… [T]he Graves Amendment provides “that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle by reason of being the owner of the vehicle for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)'” … . However, where “a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle” … , the vehicle owner is not afforded protection under the Graves Amendment if it fails to demonstrate that it did not negligently maintain its vehicle … .

Here, MTLR failed to meet its prima facie burden demonstrating its entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it. Although MTLR submitted evidence showing that it owned the subject vehicle, that it was engaged in the business of leasing vehicles, and that the subject accident occurred during the period of the rental … , MTLR failed to submit any admissible evidence demonstrating the condition of the vehicle at the time of delivery or at any time up to the happening of the accident … . Couchman v Nunez, 2020 NY Slip Op 00844, Second Dept 2-5-20

 

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DEFENDANTS RAISED A QUESTION OF FACT ABOUT WHETHER THEY WERE SERVED WITH THE SUMMONS AND COMPLAINT AND PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Defendants raised a question of fact whether they were served with the summons and complaint and plaintiff failed to prove compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he defendants submitted the affidavit of Vicki Erani, in which she expressly averred that she was never served. She also averred that, on Thursdays, which was the day of the week of the alleged service, she customarily was away from her residence, assisting her mother with errands. The defendants also submitted the affidavit of Vicki Erani’s mother confirming that Vicki Erani spent every Thursday with her. The defendants also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server had been denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. The defendants’ submissions rebutted the presumption of proper service established by the process server’s affidavit … . * * *

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because neither of the affidavits submitted by the plaintiff of two of its vice presidents asserted personal knowledge of the purported mailing and neither vice president made the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . The plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. 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 … . Citimortgage, Inc. v Erani, 2020 NY Slip Op 00843, Second Dept 2-5-20

 

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DEFENDANT DEFAULTED; SUPREME COURT SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES AT THE INQUEST TO DETERMINE DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered issues of liability because defendant had defaulted and thereby admitted liability:

In this action, inter alia, to recover damages for personal injuries, the defendant failed to appear or answer the complaint. In an order … , the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant and directed an inquest on the issue of damages. After conducting the inquest, the court … determined that the plaintiff had failed to establish, prima facie, that the defendant was negligent and that her negligence was a substantial factor in causing the plaintiff’s injuries, and thereupon, sua sponte, directed the dismissal of the complaint.

By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Arluck v Brezinska, 2020 NY Slip Op 00839, Second Dept 2-5-20

 

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DEFENDANTS’ MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS SHOULD NOT HAVE BEEN GRANTED IN THIS PRODUCTS LIABILITY ACTION, DESPITE THE FACT THAT ONLY TWO OF THE 19 PLAINTIFFS RESIDED IN NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss on forum non conveniens grounds should not have been granted. Nineteen plaintiffs brought this production liability action alleging damage caused by defendants’ “Just For Men” dyes and products. Only two plaintiffs resided in New York and defendants’ motion to dismiss was granted on that ground, without any further proof:

“The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'” (… CPLR 327[a]). The burden was on the defendants to show that “considerations relevant to private or public interest militate against accepting or retaining the litigation” … . Factors to consider are the residency of the parties, potential inconvenience to proposed witnesses, especially nonparty witnesses, availability of an alternative forum, the situs of the actionable events, the location of the evidence, and the burden that retaining the case would have on New York courts … .

Here, the defendants asserted no facts other than that the nonresident plaintiffs were out-of-state residents. The defendants did not meet their burden of proof on the issue of convenience of the witnesses, since, among other things, there was no statement as to whom the witnesses are and where they reside. Moreover, Just For Men’s design, manufacturing, labeling, advertising, and executive decision-making all allegedly occurred in White Plains, where Combe Incorporated has a principal place of business. Further, there is no per se rule stating that out-of-state plaintiffs cannot, on the ground of forum non conveniens, sue in New York based upon products liability … , despite the fact that evidence of damages would most often be found where the plaintiff resides. Albright v Combe Inc., 2020 NY Slip Op 00837, Second Dept 2-5-20

 

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TOWN DID NOT DEMONSTRATE IT DID NOT RECEIVE WRITTEN NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted because the town did not demonstrate it had not received written notice of the defect. The Second Department noted that Supreme Court properly rejected plaintiff’s theory that inadequate lighting was a factor because that theory was not in the notice of claim and permission to amend the notice of claim was not sought by the plaintiff:

To prevail on its motion, it was the Town’s burden to establish, prima facie, that no prior written notice of the alleged condition was given to either the Town Clerk or Town Commissioner of Highways (see Code of the Town of Hempstead § 6-3; Town Law § 65-a[2]). In support of its motion for summary judgment, the Town submitted, inter alia, the affidavit of a records access officer for the Town’s Highway Department, wherein she specifically averred that she searched the Highway Department records, but did not state that she searched the Town Clerk’s records. Thus, the Town failed to establish, prima facie, that neither the Town Clerk nor the Commissioner of Highways received prior written notice of the alleged condition … . Weinstein v County of Nassau, 2020 NY Slip Op 00890, Second Dept 2-5-20

 

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QUESTION OF FACT WHETHER AGREEMENT TO ARBITRATE WAS VOID PURSUANT TO REAL PROPERTY LAW 265-b; NOT CLEAR WHETHER DEFENDANT LAW FIRM WAS ACTING AS A CONSULTANT IN A MATTER CONCERNING A DISTRESSED HOME LOAN; IF SO, THE DEFENDANT CAN VOID THE AGREEMENT TO ARBITRATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant law firm was acting as a consultant in matters related to distressed home loans such that any related agreement to arbitrate was void pursuant to Real Properly Law 265-b. Supreme Court had granted the law firm’s motion to compel arbitration:

Real Property Law § 265-b governs the conduct of distressed property consultants. “Distressed property consultant” or “consultant” is defined as “an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes” … .  A consultant does not include, inter alia, “an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice” … . Real Property Law § 265-b further provides, in part, that “[a]ny provision in a contract which attempts or purports to require arbitration of any dispute arising under this section shall be void at the option of the homeowner” … .

Here, the plaintiff raised a question of fact as to whether the Donado defendants directly provided consulting services to the plaintiff in the course of the Donado defendants’ regular legal practice … . The plaintiff asserted in his affidavit, among other things, that he never met with an attorney from Donado Law Firm, P.C. … . Inasmuch as the plaintiff raised a question of fact as to whether the Donado defendants were consultants within the meaning of former Real Property Law § 265-b[1][e][i], there is a question of fact as to whether the plaintiff would be allowed to void the arbitration provision … , and a hearing is required. Ventura v Donado Law Firm, P.C., 2020 NY Slip Op 00888, Second Dept 2-5-20

 

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EVIDENCE DID NOT SUPPORT CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER (SECOND DEPT).

The Second Department determined the trial evidence did not support consecutive sentences for criminal possession of a weapon and murder:

We agree with the defendant that the sentencing court could not lawfully direct that the sentence imposed upon one of the convictions of criminal possession of a weapon in the second degree run consecutive to the sentence imposed upon the conviction of murder in the second degree. As the defendant correctly contends, it is impossible, based on the indictment or the trial court’s charge, to determine whether the act that formed the basis of the jury’s verdict on the criminal possession of a weapon in the second degree counts was not the basis for its conviction on the murder in the second degree count. Therefore, the People have failed to meet their burden of proving the validity of consecutive sentences … . People v McClinton, 2020 NY Slip Op 00879, Second Department 2-5-20

 

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RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the for cause challenges to two jurors should have been granted and the record does not indicate defense counsel was made aware of a juror’s complaint to the judge about the deliberations and the contents of a note from the jury. The decision dealt with several suppression issues, including the finding that DNA testing of a piece of gum discarded by the defendant when he was in custody was proper:

At the commencement of the second day of deliberations, the court met with counsel and deliberating juror C.H., who had left the court a telephone message expressing concerns about deliberations. This conversation took place outside the defendant’s presence. Although the court properly attempted to keep its communication with C.H. ministerial by simply directing her to put her concerns in writing, C.H. refused to accept the court’s directions, expressing concerns about the course of deliberations, including a concern that someone was “stirring the jury” and that other jurors had been “influenced.” The court eventually directed a court officer to return C.H. to the jury room and provide her with writing materials. * * *

After the colloquy with C.H. and following an off-the-record discussion, the defendant was returned to the courtroom, and the court stated that it had received a note from the jury which had been marked as Court Exhibit X and “sealed with the consent of all parties.” No further discussion of Court Exhibit X appears on the record. * * *

We cannot assume, from the County Court’s statement that the parties agreed to seal the note, that counsel was made aware of the exact contents of the note since “an insufficient record cannot be overcome with speculation about what might have occurred. The presumption of regularity cannot salvage an O’Rama error of this nature” … . Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming … . People v Kluge, 2020 NY Slip Op 00878, Second Dept 2-5-20

 

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SEX TRAFFICKING CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing the sex trafficking conviction, determined there was insufficient evidence defendant used force or participated in a scheme to compel the alleged victim to engage in prostitution by threat of physical harm. The sex trafficking conviction was deemed to be against the weight of the evidence:

The evidence showed that the alleged victim, her mother, and a third woman, sought to earn more money than they were earning in Florida, that they voluntarily traveled with defendant to New York to earn money as prostitutes, and that defendant left them alone at times in Florida and New York. There was no evidence presented at trial that defendant ever threatened to harm the alleged victim if she failed to begin or continue working as a prostitute. A detective described a call he overheard between defendant and the alleged victim, after she was apprehended, in which defendant was angry because he believed that she did not get money from a client. However, this does not suffice to prove any use of force or a “scheme” to compel her to work as a prostitute. Similarly, although the third woman in the group that came with defendant from Florida testified that she was a “little intimidated” by an argument over money between defendant and another man, this does not establish the required threat of harm, even assuming the alleged victim also saw and heard the argument. People v Hayes, 2020 NY Slip Op 00832, First Dept 2-4-20

 

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BY NOT SEEKING THE FULL AMOUNT OF THE DEBT IN THE 90-DAY NOTICE PLAINTIFF MAY HAVE DE-ACCELERATED THE DEBT MAKING THE FORECLOSURE ACTION TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, by demonstrating it did not demand the full debt, but rather demanded only the amount needed to cure the default, presented sufficient proof that the debt had not been accelerated, and therefore the action was timely, to warrant restoring the matter to the calendar. The action had been dismissed when plaintiff did not appear at a scheduled conference. Defendant had moved to dismiss alleging the debt had been accelerated and the action was time-barred:

Plaintiff … moved, pursuant to CPLR 5015(a)(1), to vacate the dismissal order and reinstate the claim. * * *

… [P]laintiff provided evidence that it took affirmative action to de-accelerate the mortgage, which would have stopped the running of the statute of limitations on the mortgage debt. The 90-day notice provided to defendant sought an amount lower than the accelerated amount, which may evidence an intent to de-accelerate. While seeking a lower amount in and of itself is not enough to establish, as a matter of law, that the 90-day notice “destroy[ed] the effect of the sworn statement that the plaintiff had elected to accelerate the maturity of the debt” … . it is sufficient to meet the “minimal showing” required on a motion to restore … . Federal Natl. Mtge. Assn. v Rosenberg, 2020 NY Slip Op 00814, First Dept 2-4-20

 

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