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THE AFFIDAVITS SUBMITTED BY THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavits submitted by the plaintiff bank to demonstrate compliance with the notice requirements of RPAPL 1304 were insufficient: … [N]either counsel in her affirmation, nor a contract management coordinator for the plaintiff’s loan servicer in an affidavit submitted in support of the motion, averred that they had […]

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IN THIS CHILD VICTIM’S ACT PROCEEDING PLAINTIFF ALLEGED ABUSE BY A PRIEST AND TEACHER IN ELEMENTARY SCHOOL; PLAINTIFF ALLEGED THE SCHOOL WAS OVERSEEN BY DEFENDANTS PARISH AND DIOCESE; THE 2ND DEPARTMENT HELD THE BREACH OF FIDUCIARY DUTY CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NOTHING UNIQUE ABOUT THE RELATIONSHIP BETWEEN DEFENDANTS AND PLAINTIFF, AS OPPOSED TO THE RELATIONSHIPS WITH THE OTHER PARISHIONERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parish and diocese defendants’ motions to dismiss the breach of fiduciary duty cause of action in this Child Victims Act case should have been granted. Plaintiff alleged he was sexually abused when he was 10 in 1973 by a priest and teacher in elementary school. Plaintiff alleged […]

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THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE (1) STANDING TO FORECLOSE THE REVERSE MORTGAGE, (2) DEFAULT AND (3) NOTICE WAS NOT ACCOMPANIED BY THE RELEVANT BUSINESS RECORDS, RENDERING THE AFFIDAVIT HEARSAY (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s summary judgment motion in this reverse mortgage foreclosure proceeding should not have been granted.  The affidavit submitted to prove standing, default and notice was not accompanied by the relevant business records, rendering the affidavit inadmissible hearsay: CIT Bank [plaintiff] submitted an affidavit of its assistant secretary, […]

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THE PLAINTIFF’S COMPLAINT IN THIS FORECLOSURE ACTION DID NOT INCLUDE ALLEGATIONS OF COMPLIANCE WITH RPAPL 1306, WHICH IS A CONDITION PRECEDENT TO SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not include in its complaint in this foreclosure action the allegation it had complied with RPAPL 1306, which is a condition precedent to suit: RPAPL 1304(1) provides that, “with regard to a home loan, at least ninety days before a lender, an assignee or a […]

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THE AFFIDAVIT FROM THE LOAN SERVICER PURPORTING TO DEMONSTRATE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION DID NOT AVER THAT THE AFFIANT HAD THE AUTHORITY TO ACT FOR THE PLAINTIFF BANK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ default was not demonstrate by the complaint, which was not verified, or by the affidavit from the loan servicer, which did not aver that the affiant had the authority to act on behalf of the plaintiff bank in this foreclosure proceeding: … Supreme Court erred in […]

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DEFENDANT’S COMPLAINTS TO THE UNITED STATES TENNIS ASSOCIATION (USTA) ABOUT PLAINTIFF’S BULLYING OF HER SON AT JUNIOR TOURNAMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; ANY STATEMENTS ALLEGED TO HAVE BEEN FALSE WERE NOT MOTIVATED BY MALICE; THE DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Zayas, determined that the defamation action should have been dismissed. Defendant’s son was a tennis player who participated in United State Tennis Association (USTA) junior tournaments. Defendant communicated with the USTA alleging that plaintiff, another tennis player, was bullying defendant’s son. The only […]

THE DEFENDANT WAS NOT PRODUCED FOR SENTENCING; HIS RIGHT TO BE PRESENT AT SENTENCING WAS THEREFORE VIOLATED, REQUIRING REMITTAL FOR RESENTENCING (SECOND DEPT).

The Second Department, remitting the matter for resentencing, noted that defendant was deprived of his right to be personally present at his sentencing: A defendant has a fundamental right to be “personally present at the time sentence is pronounced” … . Here, the defendant was not produced at sentencing on the convictions of assault in […]

THE TIMELY FILING OF A SECOND MECHANIC’S LIEN TO CORRECT PROBLEMS WITH THE FIRST MECHANIC’S LIEN WHICH HAD BEEN CANCELLED BY THE COURT IS NOT PROHIBITED BY THE LIEN LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Lien Law does not prohibit a second filing of a mechanic’s lien after the cancellation of the first: Lien Law § 38 requires a lienor, upon demand, to provide a statement in writing setting forth, among other things, “the items of labor and/or material and the value […]

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WHETHER THE AGREEMENT TO ARBITRATE IS VALID IS A THRESHOLD ISSUE FOR THE COURT, NOT THE ARBITRATOR (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that the validity of an agreement to arbitrate is a threshold issue which must be determined by the court, not the arbitrator: … [T]he petitioners raised a threshold issue regarding the validity of the purported agreement to arbitrate, as they contended that they did not sign, and that […]

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SUN GLARE DID NOT CREATE AN EMERGENCY FOR THE BUS DRIVER WHO STRUCK PLAINTIFF PEDESTRIAN (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the defendant bus driver and bus company did not raise a question of fact on the applicability of the emergency doctrine.. Defendants alleged sun glare prevented the driver from seeing plaintiff pedestrian in the crosswalk: … [T]he defendants failed to raise a triable issue of fact as […]

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