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SURR0GATE’S COURT PROPERLY DENIED THE ADMINISTRATOR’S PETITION FOR AUTHORITY TO CONDUCT A SHORT SALE OF DECEDENT’S REAL PROPERTY WHICH WAS WORTH SUBSTANTIALLY LESS THAN THE MORTGAGE WHICH ENCUMBERED THE PROPERTY, CONCLUSORY ASSERTIONS IN THE PETITION INSUFFICIENT (SECOND DEPT).

The Second Department determined Surrogate’s Court properly denied the petition by the administrator of decedent’s estate seeking authority to conduct a “short sale” of real property that was worth substantially less than the mortgage which encumbered the property. Surrogate’s Court determined the proof offered in support of the petition fell short in several respects:

A decedent’s personal property is the primary source for the payment of the decedent’s debts, and land cannot be used as a source of funds unless the personalty has been exhausted … . However, the primary source for payment of a mortgage debt is the mortgaged premises (…EPTL 3-3.6). To obtain court authorization to sell real property to satisfy a decedent’s debts, including mortgage debts, a personal representative must demonstrate that the decedent’s personal property is insufficient to satisfy the debts (see SCPA 1902[3] …).

A Surrogate has ” the right to decree intelligently, and upon equitable principles, and to order [executors’ and administrators’] conduct upon principles of justice and of reason,'” and may not ” rubber stamp'” an application without examining its basis … . Here, we agree with the Surrogate’s Court’s determination that, without other evidence, the petitioner’s conclusory assertions regarding the extent of the decedent’s personal property and debts, the existence and status of the mortgage, and the identities of potential distributees were insufficient to support the relief he sought. Matter of Kahn, 2019 NY Slip Op 04384, Second Dept 6-5-19

 

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THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript:

The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided “a copy of a transcript from the proceeding, . . . any of the submissions that he may have made in support of the requests, including the applications for any variances themselves” and had “also not provided an affidavit from a person with knowledge in support of [his] petition.”

CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.” Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381, Second Dept 6-5-10

 

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DEFENDANT DRIVER’S CLAIM HE COULDN’T STOP BECAUSE HIS CAR SKIDDED ON WET METAL GRATING DID NOT ESTABLISH THE REAR-END COLLISION WAS UNAVOIDABLE, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiffs were entitled to summary judgment in this rear-end collision case. The defendants’ claim that the defendant driver, Flippen, couldn’t stop because the skidded on wet metal grating did not raise a question of fact:

“[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 in order to rebut the inference of negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability, as the evidence submitted in support of their motion demonstrated that the injured plaintiff’s vehicle was stopped when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ contention that Flippen applied his brakes but was unable to stop because his vehicle skidded on a wet metal grating on the roadway was insufficient to rebut the inference of negligence arising from the rear-end collision because they failed to demonstrate that Flippen’s skid on known road conditions was unavoidable … . Morgan v Flippen, 2019 NY Slip Op 04377, Second Dept 6-5-19

 

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INFORMATION PROVIDED FOR THE FIRST TIME IN A REPLY TO OPPOSITION TO A SUMMARY JUDGMENT MOTION CAN NOT BE RELIED UPON TO MAKE OUT A PRIMA FACIE CASE, THE APPELLANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ON THE JOB INJURY CASE ON THE GROUND THAT APPELLANT WAS PLAINTIFF’S GENERAL EMPLOYER AND PLAINTIFF’S ONLY REMEDY WAS WORKERS’ COMPENSATION PROPERLY DENIED (SECOND DEPT).

The Second Department determined that information provided for the first time in a reply affidavit could not be relied upon to sustain a movant’s prima facie burden for a summary judgment motion. The plaintiff, who was injured on the job, alleged he was hired by the defendant Bright Star Messenger Service, LLC (hereinafter the appellant). In its motion for summary judgment the appellant alleged it was plaintiff’s general employer and plaintiff’s only remedy was Workers’ Compensation. But included in appellant’s papers was plaintiff’s claim for Worker’s Compensation benefits which listed plaintiff’s employer as “Bright Star Courier.” Therefore the appellant failed to make out a prima facie case that it was plaintiff’s employer. The appellant then submitted a reply affidavit stating that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC prior to the accident:

… Contrary to the appellant’s contention, it failed to make a prima facie showing that it was the plaintiff’s general employer. The appellant submitted the affidavit of a representative of the appellant, who stated that the plaintiff was employed by the appellant on the date of the accident, and that the appellant had procured workers’ compensation insurance for the plaintiff. However, the appellant also submitted Workers’ Compensation Board records showing that the plaintiff had filed a claim for benefits that listed the plaintiff’s employer as “Bright Star Courier.” Under these circumstances, the appellant failed to demonstrate, prima facie, that it was the plaintiff’s general employer … . While the appellant submitted a reply affidavit from its representative averring that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC, prior to the accident, a party cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers  … . The appellant’s failure to make a prima facie showing of its entitlement to judgment as a matter of law required the denial of its motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Matthews v Bright Star Messenger Ctr., LLC, 2019 NY Slip Op 04375, Second Dept 6-5-19

 

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DISCOVERY OF PRIOR ASSAULTS IN THIS STUDENT ON STUDENT THIRD-PARTY ASSAULT CASE SHOULD NOT HAVE BEEN LIMITED TO PRIOR SEXUAL ASSAULTS AND PRIOR ASSAULTS BETWEEN THE TWO STUDENTS, ASSAULTS OF ANY KIND MAY HAVE PUT THE SCHOOL ON NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that discovery in this third-party assault (negligent supervision) case should not have been restricted to prior sexual assaults in the school and prior assaults between the alleged (student) perpetrator and the (student) plaintiff:

We disagree with the Supreme Court’s determination that the defendants were only required to provide records pertaining to “assaults of a sexual nature” and “all assaults of any nature between” the infant plaintiff and the student alleged to have sexually assaulted the infant plaintiff. Evidence of prior assaults at the school, particularly any assaults in the stairwell where the subject incident occurred, may be sufficient to establish that the defendants had actual or constructive notice of conduct similar to the subject incident … . Moreover, evidence of any prior assaults perpetuated by the offending student against students other than the infant plaintiff may be sufficient to establish that the defendants had actual or constructive notice of the offending student’s dangerous propensities … . M.C. v City of New York, 2019 NY Slip Op 04372, Second Dept 6-5-19

 

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PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE ON THE GROUND THAT THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION HAD EXPIRED SHOULD HAVE BEEN DISMISSED, THE BANK UTTERLY REFUTED THE ALLEGATION WITH DOCUMENTS DEMONSTRATING THE DEBT HAD NEVER BEEN ACCELERATED; CLEAR EXPLANATION OF THE REQUIREMENTS FOR DISMISSAL BASED ON DOCUMENTARY EVIDENCE AND ACCELERATION OF A MORTGAGE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined that the bank’s (Deutsche Bank’s) motion to dismiss the plaintiff’s RPAPL article 15 action to cancel and discharge the mortgage should have been granted. The bank had started foreclosure proceedings in 2007 and plaintiff alleged in the complaint that the statute of limitations had run. However, the 2007 action had been dismissed because the bank did not have standing at the time it was brought. The Second Department determined the documentary proof of the dismissal of the 2007 action demonstrated, as a matter of law, that the debt had never been accelerated and, therefore, the statute of limitations had never started running. The decision provides a succinct and clear explanation of the requirements for a dismissal based on documentary evidence and the requirements for accelerating a mortgage debt:

… [C]ontrary to the plaintiff’s contention and the opinion of our dissenting colleague, the commencement of the foreclosure action, which was dismissed on the ground that Deutsche Bank lacked standing, was ineffective to constitute a valid exercise of the option to accelerate the debt since Deutsche Bank did not have the authority to accelerate the debt at that time … . The plaintiff did not identify the specific time when the mortgage was actually, legally accelerated. Furthermore, the notices of default were nothing more than letters discussing acceleration as a possible future event, which do not “constitute an exercise of the mortgage’s optional acceleration clause” … . …

Consequently, the allegations in the complaint that the debt was accelerated as of April 30, 2007, the date when Deutsche Bank commenced the underlying foreclosure action, or prior to April 30, 2007, when the notices of default were sent, are utterly refuted by the documentary evidence submitted by Deutsche Bank, which included the written assignment of the mortgage [dated after April 30, 2007) “together with the . . . note” and the October 2009 order [dismissing the foreclosure action], in support of that branch of its motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint … . Moreover, Deutsche Bank, through the evidence it submitted with its motion, demonstrated that the plaintiff’s allegation that the statute of limitations to foreclose the subject mortgage had expired was “not a fact at all,” and that “it can be said that no significant dispute exists regarding it,” warranting dismissal of the complaint pursuant to CPLR 3211(a)(7) … . J & JT Holding Corp. v Deutsche Bank Natl. Trust Co., 2019 NY Slip Op 04366, Second Dept 6-5-19

 

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OUT-OF-POSSESSION LANDLORD COULD NOT HAVE FORESEEN THAT INFANT PLAINTIFF WOULD MOVE LOGS STACKED AT THE SIDE OF THE PROPERTY AND THEN FALL WHEN JUMPING FROM LOG TO LOG, INFANT PLAINTIFF CREATED THE DANGEROUS CONDITION AND ASSUMED THE RISK (FIRST DEPT). ​

The First Department determined the out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly granted. Infant plaintiff (Deandre) had moved some logs from the side of the property and was jumping from log to log when he fell:

Defendant testified that he had had the tree cut down and the logs stacked along a property fence line several years earlier and had never seen the logs anywhere else on the property. Deandre testified that he and his friends had arranged the logs in a line and were jumping from log to log when he fell. The record shows that no one had complained to defendant, an out-of-possession landlord, about the logs before the accident, and Deandre testified that he had been playing on them for about 10 minutes when he fell.

Plaintiffs contend that it was foreseeable that children would move the logs. However, absent evidence of earlier incidents involving the logs or any complaint made to defendant about the logs, the possibility of children playing with them does not render the presence of the logs in the backyard foreseeably dangerous … .

Plaintiffs also failed to raise an issue of fact as to whether Deandre could fully appreciate the risks of jumping onto logs. As Deandre himself created the danger by setting up and jumping on the logs while playing with his friends, plaintiffs cannot show that he was faced with a risk that was unassumed, S.-B. v Radincic, 2019 NY Slip Op 04324, First Dept 6-4-19

 

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IT WAS REVERSIBLE ERROR TO ADMIT A WITNESS’S GRAND JURY TESTIMONY, THE WITNESS’S CLAIM HE COULD NOT REMEMBER THE EVENTS WAS NOT SO DAMAGING TO THE PEOPLE’S CASE AS TO ALLOW THE GRAND JURY EVIDENCE FOR IMPEACHMENT PURPOSES (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that admitting the grand jury testimony of a witness was reversible error. The witness’s testimony at trial that he couldn’t remember the events was not so damaging to the People’s case as to justify impeachment:

The People concede that the trial court erred in admitting the grand jury testimony of a witness indicating that defendant fired an errant shot that struck a bystander as defendant and a companion fled from another group following a verbal altercation. Specifically, the People acknowledge that the testimony was not admissible under the past recollection recorded exception to the hearsay rule, because the witness did not testify at trial that the grand jury testimony “correctly represented his knowledge and recollection when made” … , and was not admissible for impeachment purposes under CPL 60.35 because the witness’s trial testimony that he could not remember the relevant events did not “affirmatively damage[] the case of the party calling him” … . People v Folk, 2019 NY Slip Op 04321, First Dept 6-4-19

 

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THE CANDIDATE SIGNED THE SUBSCRIBING WITNESS STATEMENT WHICH INDICATED EACH VOTER SIGNED THE DESIGNATING PETITION IN HIS PRESENCE, WHICH WAS NOT THE CASE, DESIGNATING PETITION WAS PROPERLY INVALIDATED BASED UPON THE CANDIDATE’S PARTICIPATION IN FRAUDULENT ACTIVITY (THIRD DEPT).

The Third Department determined the designating petition was properly invalidated because there was clear and convincing evidence the candidate (Subedi) participated in fraudulent activity:

Regarding the challenged signatures for which Subedi was the subscribing witness, it is undisputed that the voters did not subscribe their signatures in Subedi’s presence nor did they identify themselves to Subedi as the signatories. Notwithstanding the foregoing, Subedi signed the subscribing witness statement on each sheet containing the challenged signatures and attested that, “[e]ach of the individuals whose names are subscribed to this petition sheet . . ., subscribed the same in [his] presence . . . and identified himself or herself to be the individual who signed [the] sheet.” Subedi then filed the designating petition and did not notify the Board of any irregularity or otherwise correct his subscribing witness statement. Under these circumstances, we conclude that Supreme Court correctly determined that there was clear and convincing evidence of fraudulent conduct on the part of Subedi … .

We note that Subedi freely admits his error and contends that he was not trying to gain any unfair advantage. Fraud, however, does not require any proof of a “‘nefarious motive'” … . Matter of Burman v Subedi, 2019 NY Slip Op 04315, Third Dept 5-31-19

 

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PERSONS WHO SIGNED A DESIGNATING PETITION WHICH WAS DEEMED NULL AND VOID COULD VALIDLY SIGN A SUBSEQUENT OPPORTUNITY TO BALLOT PETITION (THIRD DEPT).

The Third Department, reversing the Board of Elections, determined that the persons who signed a designating petition which was deemed null and void could validly sign a subsequent opportunity to ballot petition:

In general, when a qualified voter signs a designating petition and, on a subsequent date, signs an opportunity to ballot petition, the voter’s signature on the later opportunity to ballot petition is invalid (see Election Law § 6-134 [3]…). However, where, as here, a qualified voter signs a designating petition that is subsequently invalidated or deemed “null and void” by operation of law (Election Law § 6-146 [1]), the voter is permitted to sign an opportunity to ballot petition subsequent to the invalidation of the designating petition … . “A contrary holding would deprive persons who signed a designating petition later held invalid from exercising the separate right given to them by the Election Law to request the opportunity to write in the name of a candidate of their choice” … . Matter of Stack v Harrington, 2019 NY Slip Op 04314, Third Dept 5-31-19

 

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