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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 was not demonstrated by the bank:

… [T]he affidavit of Theresia Ang, assistant vice president for the loan servicer, PHH Mortgage Corporation (hereinafter PHH), which was submitted in support of the motion, was insufficient to establish that the notice was sent to the defendants in the manner required by RPAPL 1304 … . While Ang attested that “a ninety (90) day pre-foreclosure notice” was sent to the defendants “by registered or certified and first class mail,” and attached a copy of the notice along with a proof of filing statement from the New York State Banking Department, “the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened” … . The plaintiff did not submit an affidavit of service, or proof of mailing by the post office evincing that it served the defendants pursuant to RPAPL 1304 by registered or certified mail and also by first-class mail to their last known address … . Moreover, while Ang attested that she had personal knowledge of the records maintained in PHH’s electronic record keeping system, the plaintiff failed to submit 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” … . KeyBank N.A. v Barrett, 2019 NY Slip Op 08835, Second Dept 12-11-19

 

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SUPREME COURT SHOULD NOT HAVE MODIFIED THE PARENTAL ACCESS PROVISIONS OF THE JUDGMENT OF DIVORCE WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parental access provisions of the judgment of divorce should not have been modified without holding a hearing:

“A party seeking a change in [parental access] or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” … . As a general matter, custody and parental access determinations should only be rendered after a full hearing … .However, this general right is not absolute … , and a hearing “is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody … .

The plaintiff made the necessary showing entitling him to a hearing regarding that branch of his motion which was to modify the parental access provisions of the judgment of divorce with respect to the child … . The record shows that there were disputed factual issues regarding the child’s best interests such that a hearing on modification of parental access was required … . Further, “[a] decision regarding child custody and parental access should be based on admissible evidence” … . Here, in making its determination, the Supreme Court relied solely on information provided at court conferences, and the hearsay statements and conclusions of the family specialist, whose opinions and credibility were untested by either party … . Katsoris v Katsoris, 2019 NY Slip Op 08833, Second Dept 12-11-19

 

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TIME TO SERVE DEFENDANT, WHO LIVED IN INDIA, IN THIS FORECLOSURE ACTION WAS PROPERLY EXTENDED IN THE INTEREST OF JUSTICE BUT SUPREME COURT SHOULD NOT HAVE DIRECTED AN ALTERNATIVE METHOD OF SERVICE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the time for serving defendant (Kothary), who lived in India, in this foreclosure action was properly extended in the interest of justice pursuant to CPLR 306-b. But Supreme Court should not have directed an alternative method of service (service upon the defendant’s attorney) pursuant to CPLR 308 (5):

… [W]e agree with the Supreme Court’s determination granting, in the interest of justice, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Kothary. The plaintiff established, among other things, that the action was timely commenced, and that service was timely attempted and was perceived by the plaintiff to have been within the 120-day period but was subsequently found to have been defective … . Additionally, the plaintiff demonstrated that it has a potentially meritorious cause of action, and that there was no identifiable prejudice to Kothary as a consequence of the delay in service … . …

However, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary’s attorney. “CPLR 308(5) vests a court with discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are impracticable” … . “[A] plaintiff seeking to effect expedient service must make some showing that the other prescribed methods of service could not be made” … . Here, at the hearing, Kothary provided the address where he resides in New Delhi … , and the plaintiff failed to submit any evidence that effectuating service in India by any of the authorized methods would have been unduly burdensome … . “That [Kothary] resided in a foreign country did not, by itself, relieve the plaintiff of [its] obligation to make a reasonable effort to effectuate service in a customary manner before seeking relief pursuant to CPLR 308(5)” … . JPMorgan Chase Bank, N.A. v Kothary, 2019 NY Slip Op 08832, Second Dept 12-11-19

 

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; QUESTION OF FACT ON HIS LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1)  “falling object” cause of action:

The record reflects that plaintiff was on a temporary exterior platform on the 21st floor of a building under construction, when he was struck and injured by a falling piece of DensGlass, an exterior sheetrock material, which matched the size of a missing piece of sheetrock one floor above. Plaintiff was in the process of dismantling the bridge that was linked to the exterior hoist elevator.

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim based on the record evidence that a piece of the exterior facade of the building still under construction fell on him, that workers were performing patch work to the DensGlass on the floors above plaintiff, and that the exterior facade was not complete … . Furthermore, defendants’ cross motions for summary judgment dismissing the § 241(6) claim should have been denied because there is a triable issue of fact as to whether the area where the accident occurred was “normally exposed to falling material or objects” requiring that plaintiff be provided with “suitable overhead protection” (see 12 NYCRR 23-1.7[a][1] …). Garcia v SMJ 210 W. 18 LLC, 2019 NY Slip Op 08791, First Dept 12-10-19

 

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THE INCLUSION OF EXTRANEOUS INFORMATION ON THE VERDICT SHEET WHICH DID NOT PROVIDE ANY SUBSTANTIVE INFORMATION ABOUT THE CASE WAS HARMLESS ERROR (THIRD DEPT).

The Third Department determined, although it was error to include extraneous information on the verdict sheet, i.e., that the defendant had authorized the verdict sheet, the error was harmless:

The Court of Appeals has “held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2)” … . Moreover, “[t]he basic principle is that nothing of substance can be included that the statute does not authorize” … . * * *

The extraneous statement was not part of the questions posed to the jury; rather, it was at the end of the verdict sheet. It did not change any of the questions to the jury. … [W]e find that the submission to the jury of the … verdict sheet with the statement asserting that defendant authorized it, without his signature, was not reversible error, because the extraneous statement gave no substantive information to the jury about the case and merely indicated that defendant saw the verdict sheet, was aware of his charges and was represented by an attorney … . People v Stover, 2019 NY Slip Op 08734, Third Dept 12-5-19

 

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ALTHOUGH COUNTY COURT ISSUED, ENTERED AND FILED A DECISION ADJUDICATING DEFENDANT A LEVEL THREE SEX OFFENDER, THERE WAS NO LANGUAGE INDICATING THE DECISION WAS A JUDGMENT OR AN ORDER; IN ADDITION, THE RISK ASSESSMENT INSTRUMENT DID NOT INCLUDE “SO ORDERED” LANGUAGE; THEREFORE THERE WAS NO APPEALABLE ORDER BEFORE THE COURT AND THE APPEAL WAS DISMISSED (THIRD DEPT).

The Third Department dismissed the appeal of County Court’s SORA risk assessment because County Court did not issue an appealable order:

Following a hearing, County Court rejected defendant’s challenge to certain assessed points, adjudicated him as a risk level three sex offender and designated him as a sexually violent offender. Defendant appeals.

An appealable order must be in writing (see CPLR 2219 [a] …), and must contain language that identifies the document as “either a judgment or order of the court”… . Consistent with these mandates, the Sex Offender Registration Act … requires that County Court must “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based”… . That written order must then be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a] …).

Here, County Court issued a written decision which was subsequently entered and filed. However, the decision contains no language indicating that it is an order or judgment, and it does not appear that a written order was entered and filed … . Moreover, the risk assessment instrument does not contain “so ordered” language so that it may constitute an appealable order … . Accordingly, this appeal is not properly before this Court and must be dismissed … . People v Porter, 2019 NY Slip Op 08743, Third Dept 12-5-19

 

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PROOF OF OCCASIONAL DRUG USE IN THE REMOTE PAST AND REFERRALS FOR ALLEGED DRUG USE IN PRISON SEVERAL YEARS AGO WAS INSUFFICIENT TO WARRANT THE ASSESSMENT OF 15 POINTS FOR A HISTORY OF DRUG AND ALCOHOL ABUSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant should not have been assessed 15 points for his history of drug and alcohol abuse. The evidence of drug use was remote in time and drug use was not an aspect of the offense:

Defendant reported that, prior to moving to this area in 1987, he had used cocaine once during his incarceration in Alabama and speed while working in the south, but denied any recent drug use. The information regarding defendant’s use of drugs is in the distant past and excessively remote … and, in any event, does not establish a pattern of drug abuse as contemplated by the Sex Offender Registration Act risk assessment guidelines … . In addition, the case summary reflects that, upon being screened by the Department of Corrections and Community Supervision, drug use was not an issue of concern with regard to defendant and he was not, at that time, referred to any alcohol or drug treatment program.

The remaining evidence with regard to defendant’s history of drug or alcohol abuse is the general reference to defendant twice being referred to alcohol and drug abuse treatment programs during his 26 years of incarceration for the instant offense “presumptively” due to defendant receiving five tier III disciplinary sanctions for drug use. The most recent referral was several years ago, in 2012. We find that this is insufficient, by itself, to establish a pattern of drug or alcohol abuse by defendant … . People v Brown, 2019 NY Slip Op 08746, Third Dept 12-5-19

 

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SEARCH WARRANT FOR DEFENDANT’S CELL PHONE WAS OVERLY BROAD; GUILTY PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the search warrant issued for defendant’s cell phone was  overly broad in that it authorized a search going back eight months before the conduct alleged in the warrant:

The search warrant for defendant’s phones was overbroad. The application alleged that, on September 1, 2016, defendant sent texts to a 13 year old making indecent proposals, and called her on the same day. The warrant authorized examination of defendant’s internet usage from January 1 to September 13, 2016, and also authorized, without a time limitation, examination of essentially all the other data on defendant’s phones. This failed to satisfy the particularity requirement of both the Fourth Amendment and Article 1, § 12 of New York’s Constitution … .

The pivotal question here is whether there was probable cause that evidence of the crimes specified in the warrant would be found in the broad areas specified. Notably, the warrant application alleged two discrete crimes and specified conduct that “began” on September 1, 2016, and, as far as the available information indicated, occurred entirely on that date. While it was of course possible that defendant’s phone contained evidence of the specified offenses that predated September 1, there were no specific allegations to that effect. …

The information available to the warrant-issuing court did not support a reasonable belief that evidence of the crimes specified in the warrant would be found in all of the “locations” within defendant’s cell phone to which the warrant authorized access — for example, in defendant’s browsing history six or seven months before September 1, 2016, or in his emails, the examination of which was authorized without any time restriction … . People v Thompson, 2019 NY Slip Op 08772, First Dept 12-5-19

 

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COURTROOM SHOULD NOT HAVE BEEN CLOSED TO FAMILY MEMBERS DURING THE UNDERCOVER OFFICER’S TESTIMONY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, ordering an new trial, determined the defendant’s family members should not have been excluded from the courtroom duing the undercover officer’s testimony:

The People concede that the trial court erred in excluding defendant’s family members from some parts of the trial … . Here, the People failed to show specifically that defendant’s family posed a threat to the undercover officer’s safety. The court’s error requires reversal of the conviction … .

The People acknowledge that a harmless error/lack of prejudice analysis does not apply to courtroom closure errors. Nevertheless, relying on nonbinding Second Circuit case law, they argue that reversal is not warranted because the exclusion of defendant’s family was so trivial as not to implicate defendant’s right to a public trial (see e.g. Smith v Hollins, 448 F3d 533 [2d Cir 2006]). We need not decide whether a triviality exception exists under State law, because even applying that standard, the closure here cannot be characterized as trivial. Defendant’s family was kept out of the courtroom during the entirety of the direct examination, and part of the cross-examination, of an undercover officer who was one of the People’s key witnesses. That undercover was one of the officers involved in the narcotics operation that formed the basis of the charge against defendant. He set up the meeting to purchase the drugs, gave the buy money to defendant’s accomplice, and received crack cocaine in return. Thus, the exclusion of defendant’s family members “from the crux of the [People’s] case” was not trivial … . People v Ruffin, 2019 NY Slip Op 08771, First Dept 12-5-19

 

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ABSENT A FINDING OF PERMANENT PARTIAL DISABILITY, CLAIMANT NEED NOT SHOW ATTACHMENT TO THE LABOR MARKET AND IS ENTITLED TO RELY ON HER CHIROPRACTOR’S OPINION SHE IS TEMPORARILY TOTALLY DISABLED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was not required to show attachment to the labor market because there had not been a finding of permanent partial disability:

Claimant sought review by the Workers’ Compensation Board, contending that she was not required to demonstrate attachment to the labor market because, absent a finding that she had sustained a permanent partial disability, she was entitled to rely upon her chiropractor’s opinion that she was temporarily totally disabled. …

Claimant’s obligation to demonstrate attachment to the labor market is predicated — in the first instance — upon a finding of a permanent partial disability … . Matter of Bowers v New York City Tr. Auth., 2019 NY Slip Op 08748, Second Dept 12-5-19

 

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