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THE BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate strict compliance with the notice requirements of RPAPL 1304. The bank’s motion for summary judgment should not have been granted: No evidence that the RPAPL 1304 notice was mailed by certified mail to the defendant at the subject property […]

THE COMPLAINT ADEQUATELY ALLEGED DEFENDANT VIOLATED THE CIGARETTE MARKETING STANDARDS ACT (CMSA) BY OFFERING REBATES WHICH EFFECTIVELY LOWERED THE PRICE OF CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for the violation of the Cigarette Marketing Standards Act (CMSA) by offering rebates which effectively lowered the price of cigarettes: … [T]he CMSA and its regulations make clear that rebates which directly or indirectly serve to reduce prices below legal minimums […]

THE ONE YEAR TIME-LIMIT IN CPLR 3404 FOR A MOTION TO RESTORE AN ACTION TO THE CALENDAR DID NOT APPLY TO THIS CASE WHERE THE ACTION WAS ADMINISTRATIVELY DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined CPLR 3404, which requires a motion to restore an action to the calendar be made within one year, did not apply here where the action was administratively dismissed: The plaintiffs commenced this action, inter alia, for a judgment declaring a certain deed null and void. In November 2017, […]

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SLIGHTLY DIFFERENT SIGNATURES ON THE NOTE AND DEFENDANTS’ DENIAL OF RECEIPT OF THE RPAPL 1304 NOTICE DID NOT RAISE QUESTIONS OF FACT; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should have been granted. Slightly different signatures on the note and defendants’ denial of receipt of the RPAPL 1304 notice did not raise questions of fact: … [U]nder the circumstances of this case, the fact that the plaintiff […]

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 in this foreclosure action: Although the envelope has “Wells Fargo Home Mortgage” printed on it, there is no visible sender address. The envelope has the name “Shields” [defendant] hand-written in the top right corner. The […]

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED BECAUSE IT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED (HEARSAY) (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed in this foreclosure action because the computations in the report were based on business records which were not produced: … “[T]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record […]

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DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE BANK POSSESSED THE CORRECT VERSION OF THE NOTE, AND, THEREFORE, WHETHER THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action raised a question of fact whether the bank possessed the relevant note, and therefore had standing, when the action was commenced: “Pursuant to article 3 of the Uniform Commercial Code, a note can be endorsed, or signed over, to a new owner” … […]

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DEFENDANT HAD BEEN RELEASED FOR 12 YEARS WITHOUT REOFFENDING AT THE TIME OF THE SORA HEARING; DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE (SECOND DEPT).

The Second Department, reversing Supreme Court’s SORA risk-level assessment and designating defendant a level one sex offender, the fact that defendant had not reoffended between 2004 and 2018 was a factor warranting a downward departure: A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a […]

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THE COMPLAINANT’S IDENTIFICATION OF DEFENDANT FROM A SINGLE PHOTOGRAPH WAS UNDULY SUGGESTIVE; PROOF OF SERIOUS INJURY RE: THE ASSAULT CHARGE WAS LEGALLY INSUFFICIENT; ALTHOUGH THE LEGAL SUFFICIENCY ARGUMENT WAS NOT PRESERVED IT WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over an extensive partial dissent, determined: (1) the defendant was entitled to a new trial on the burglary charge because the identification procedure was unduly suggestive; and (2) the serious injury element of the assault charge was not supported by legally sufficient evidence: … [A]lthough the burglary complainant’s identification of the Facebook […]

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THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure actions: Where, as here, the plaintiff’s standing has been placed in issue by the defendant’s answer, the plaintiff must prove its standing as part of its prima facie showing … . “[A] plaintiff may demonstrate its standing in […]

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