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THE 2ND DEPARTMENT IMPOSED SANCTIONS ON A LAW FIRM FOR FAILING TO IMMEDIATELY NOTIFY THE APPELLATE COURT THAT A MATTER WITH A PENDING APPEAL HAD BEEN SETTLED (SECOND DEPT).

The Second Department imposed a $250 sanction on a law firm which failed to timely notify the appellate court that a matter in a pending appeal had been settled:

Precisely in order to alert counsel that their obligation to give immediate notification of a settlement may not be postponed or delayed, this Court adopted its own local rule of practice which states that, for purposes of 22 NYCRR 1250.2(c), settlement includes “any oral or written agreement or understanding which may, once memorialized, render a determination of the cause unnecessary” (22 NYCRR 670.2[b]). This local rule took effect March 4, 2019, and is thus applicable to the case at hand.

In this case, members of this Court were caused to devote hours of preparation and deliberation on an appeal which, unbeknown to them, had been settled nearly one month earlier. Had this Court been timely advised of the settlement in this case, it could have avoided wasting judicial resources on a settled case and could have redirected those resources to one of the many actual controversies that fill its docket. Since the Fixler firm had an independent obligation to give this Court notice of the settlement and assured the Sim Firm that, as between the attorneys, the Fixler firm would assume responsibility for notification, the imposition of sanctions upon the Fixler firm in the sum of $250 is warranted. Guo-Bang Chen v Caesar & Napoli, P.C., 2019 NY Slip Op 08166, Second De[t 11-13-19

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE ABSENCE OF COMPARATIVE FAULT NO LONGER NEED BE SHOWN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted, noting that a plaintiff need not demonstrate the absence of comparative fault:

A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability … . ” A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'” ( … see Vehicle and Traffic Law § 1129[a]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, ” vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows'” … .

Here, the plaintiff testified at his deposition that he was reducing the speed of his vehicle, with his foot on the brake pedal, when his vehicle was struck in the rear by the defendant’s vehicle. Likewise, the defendant’s testimony at her deposition, a transcript of which was submitted by the plaintiff in support of his cross motion, was to the effect that her vehicle hit the plaintiff’s vehicle in the rear while in “stop and go” traffic. Thus, the plaintiff established, prima facie, that the defendant’s negligence was a proximate cause of the accident … . Xin Fang Xia v Saft, 2019 NY Slip Op 08248, Second Dept 11-13-19

 

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COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint did not state causes of action for false arrest and malicious prosecution:

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . “To be held liable for false arrest, the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition” … . “Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . Here, the plaintiff’s complaint and his affidavit in opposition to the motion merely alleged that the defendants provided false information to the police, and therefore, did not establish that the plaintiff has a cause of action to recover damages for malicious prosecution or false arrest against the defendants … . Williston v Jack Resnick & Sons, Inc., 2019 NY Slip Op 08247, Second Dept 11-13-19

 

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THE UCC CRITERIA FOR PROOF OF POSSESSION OF A LOST NOTE WERE NOT MET; PLAINTIFF BANK THEREFORE DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to bring the foreclosure action. The UCC’s requirements for demonstrating ownership of a lost note were not met:

… [T]he affidavit of possession of the original note, sworn to by a vice president of loan documentation for the plaintiff, does not contain any details of delivery of the note, except for the claim that it was delivered to the plaintiff sometime after its execution, and that the plaintiff “had possession of the Promissory Note on or before … the date that this action was commenced.” The lost note affidavit of another vice president of loan documentation employed by the plaintiff stated vaguely, and in a conclusory manner, that the note was “inadvertently lost, misplaced or destroyed,” that the plaintiff had not “pledged, assigned, transferred, hypothecated or otherwise disposed of the note,” and that the plaintiff had made “a diligent and extensive search of its records in a good faith effort to discover the lost note in accordance with its procedures for locating the lost note.” The lost note affidavit did not provide any facts as to when the search for the note occurred, who conducted the search, or when or how the note was lost … . Thus, it “failed to sufficiently establish the plaintiff’s ownership of the note” … .

Since the plaintiff failed to demonstrate its ownership of the lost note (see UCC 3-804), or that it had standing, “as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action … . Wells Fargo Bank, N.A. v Meisels, 2019 NY Slip Op 08243, Second Dept 11-13-19

 

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ALTHOUGH THE MARRIAGE WAS A NULLITY, DEFENDANT IS ENTITLED TO MAINTENANCE AND EQUITABLE DISTRIBUTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant’s motion for maintenance and equitable distribution should have been granted, despite the finding that the marriage was a nullity because the plaintiff-husband was not yet legally divorced when he married defendant:

The Supreme Court erred in denying the defendant’s request for maintenance and equitable distribution on the ground that the marriage was a nullity. Domestic Relations Law § 236 expressly provides that, “[i]n any action or proceeding brought . . . during the lifetime of both parties to the marriage to . . . declare the nullity of a void marriage, . . . the court may direct either spouse to provide suitably for the support of the other” … . The statute further provides that “the court, in an action wherein all or part of the relief granted is . . . declaration of the nullity of a marriage, . . . shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment” … . Valente v Cabral, 2019 NY Slip Op 08241, Second Dept 11-13-19

 

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BANK DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT OR COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS; 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 the bank’s (Chase’s) motion for summary judgment in this foreclosure action should not have been granted, The court held: (1) the conclusory affidavit submitted by the bank  to prove defendant’s default had no probative value, the business record itself should have been provided; (2) compliance with the mailing provisions of RPAPL 1304 was not proven by the bank; (3) failure to comply with the notice provisions of RPAPL 1304 can be raised as a defense at any time; and (4) by not raising the failure to provide the notice required by the mortgage in the answer or a motion to amend the answer, the defendant waived that defense:

Here, the affidavit of Mimoza Petreska, a vice president of Chase, submitted in support of Chase’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, was insufficient to establish the defendant’s default in payment under the note … . The only business record annexed to Petreska’s affidavit with regard to the default was a copy of the notice of default dated May 15, 2012, which merely stated, in conclusory fashion, that the defendant’s loan was in default. Conclusory affidavits lacking a factual basis are without evidentiary value … . Moreover, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . JPMorgan Chase Bank, N.A. v Akanda, 2019 NY Slip Op 08180, Second Dept 11-13-19

 

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STACKED BOXES NOT AN OPEN AND OBVIOUS CONDITION AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; TENANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED; LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; HOWEVER, LANDLORD ESTABLISHED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined the landlord did not demonstrate it was an out-of-possession landlord in this slip and fall case. But the landlord did demonstrate it did not create of have notice of the stacked boxes which allegedly caused plaintiff’s slip and fall. The stacked boxes did not constitute an open and obvious condition as a matter of law:

The evidence submitted by the tenant in support of its motion, including, inter alia, the plaintiff’s deposition testimony regarding the accident, failed to eliminate all triable issues of fact as to whether the stacked boxes constituted an open and obvious condition, and whether the stacked boxes constituted an inherently dangerous condition. The evidence likewise failed to establish, prima facie, that the tenant did not create or have notice of the condition. …

… [T]he landlord defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The copy of the lease the landlord defendants submitted was illegible, and the deposition testimony …  failed to establish, prima facie, that the landlord defendants had relinquished control over the premises to such a degree as to extinguish their duty to maintain the premise … .

… [T]he landlord defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged hazardous condition or have actual or constructive notice of the condition … . Robbins v 237 Ave. X, LLC, 2019 NY Slip Op 08237, Second Dept 11-13-19

 

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QUESTION OF FACT WHETHER CONTRACTORS WHICH DID SIDEWALK/GRATE WORK LAUNCHED AN INSTRUMENT OF HARM IN THIS SLIP AND FALL CASE; THE CONTRACTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the actions against two contractors (MPM and VRD) which did sidewalk/grate work should not have been dismissed in this slip and fall case. The two contractor defendants did not demonstrate, as a matter of law, that they did not launch an instrument of harm:

In general, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). Nonetheless, the Court of Appeals has recognized three exceptions to this general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm . . . (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties . . . and (3) where the contracting party has entirely displaced the other’s party’s duty to maintain the premises safely” … .

Here, the owner, MPM, and VRD failed to establish their prima facie entitlement to judgment as a matter of law by demonstrating that the work performed on the grate and vault did not create the allegedly dangerous condition that caused the plaintiff to trip and fall and, thus, launched a force or instrument of harm … . Randazzo v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 08236, Second Dept 11-13-19

 

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EXPERT’S OPINION THAT DEFENDANT’S IMPROPER INSTALLATION OF A SIDEWALK/MANHOLE CAUSED THE SIDEWALK HEIGHT DIFFERENTIAL IN THIS SLIP AND FALL CASE WAS NOT SUPPORTED BY EVIDENCE IN THE RECORD; THE DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court. determined the motion to set aside the verdict in this slip and fall case should have been granted. Although plaintiff’s expert was properly qualified, his opinion that defendant’s improper installation of the sidewalk/manhole caused the sidewalk height-differential over which plaintiff tripped and fell was not supported by evidence in the record:

… [T]he expert reached his conclusion as to the defendant’s negligence by assuming material facts not supported by the evidence and by guessing and speculating in drawing that conclusion … . For example, the expert testified to having no knowledge of when the sidewalk was constructed, when the manhole had been installed, or the weight and inside dimensions of the manhole structure. Yet, he opined that the defendant was responsible for the settling of the sidewalk flag and manhole due to improper backfilling, simply because the manhole belonged to the defendant at the time of the plaintiff’s fall.

Contrary to the plaintiff’s contention, absent the expert’s assumptive and speculative testimony, there was no evidence of the defendant’s negligence. ” Ippolito v Consolidated Edison of N.Y., Inc., 2019 NY Slip Op 08179, Second Dept 11-13-19

 

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DEFENDANT DID NOT COME FORWARD WITH A NON-NEGLIGENT EXPLANATION FOR STRIKING THE REAR OF PLAINTFF’S STOPPED CAR; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case:

… [T]he plaintiff’s vehicle struck the rear of the vehicle traveling directly in front of it when that vehicle made a sudden stop in response to the traffic conditions ahead. A few seconds later, the plaintiff’s vehicle was struck in the rear by a vehicle operated by the defendant John F. Meehan (hereinafter the defendant driver) … .

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff, and that the defendants’ negligence was a proximate cause of the alleged injuries … . “A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” (,,,see Vehicle and Traffic Law § 1129[a]). Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence … .

Here, in support of her motion, the plaintiff submitted, inter alia, transcripts of the deposition testimony of the parties, which demonstrated that the defendants’ vehicle struck the rear of the plaintiff’s vehicle. Thus, the plaintiff established, prima facie, that the defendant driver’s negligence was a proximate cause of the accident … . Gelo v Meehan, 2019 NY Slip Op 08175, Second Dept 11-13-19

 

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