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AS LONG AS BOTH THE CERTIFIED AND FIRST-CLASS-MAIL LETTERS NOTIFYING A MORTGAGEE OF A TAX FORECLOSURE SALE ARE NOT RETURNED, THE MORTGAGEE IS DEEMED TO HAVE BEEN PROPERLY SERVED PURSUANT TO REAL PROPERTY TAX LAW 1125 (THIRD DEPT).

The Third Department, over a dissent, determined that plaintiff property owner, pursuant to Real Property Tax Law (RPTL) 1125, was properly notified of the tax foreclosure proceedings, despite plaintiff’s allegation that the certified letter was delivered to a post office box, not the street address. RPTL 1125 deems service accomplished if the letters are not […]

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PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal […]

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CHARTER SCHOOLS IN NYC ARE REQUIRED TO PROVIDE RANDOM COVID-19 TESTS TO CITY-RESIDENT CHILDREN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the NYC Board of Education was required to provide random COVID-19 testing to city-resident students in charter schools, but not to charter-school staff or to nonparty charter schools: … Supreme Court erred in directing the City to provide Covid testing not only to children but also to […]

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PLAINTIFF BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s evidence of standing in this foreclosure action was inadmissible hearsay: … [T]he plaintiff submitted … the affidavit of James Green, a vice president of loan documentation for Wells Fargo Bank, N.A., the plaintiff’s loan servicer. Green averred, based upon his review of “the business records relating […]

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DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EIGHT-YEAR-OLD SON WAS MORE THAN HALFWAY ACROSS THE STREET WHEN STRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this pedestrian accident cause should not have been granted. Plaintiff’s eight-year-old son was struck by defendant and there was evidence the child was more than halfway across the road at the time he was struck: … [T]he evidence submitted by the […]

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DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined the radiologist’s motion for summary judgment in this medical malpractice (failure to diagnose) action should have been granted. The radiologist was asked to evaluate a “routine-screening” mammogram and indicated there were no suspicious findings. A year later plaintiff was diagnosed with breast cancer and she died a […]

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NO ONE, INCLUDING DEFENDANT DRIVER, SAW THE 17-MONTH-OLD BEFORE HEARING A LOUD “THUMP” AND FINDING THE CHILD LYING BEHIND DEFENDANT’S CAR; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver did not eliminate all questions of fact about whether she was negligence. Defendant driver heard a loud “thump” and plaintiff’s decedent, a 17-month old child, was found lying on the ground right behind defendant’s car. No one saw the impact: Shortly before the accident, the driver […]

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HEIGHT DIFFERENTIAL BETWEEN TWO ADJACENT SIDEWALK SLABS WAS A TRIVIAL DEFECT AS A MATTER OF LAW; SLIP AND FALL ACTION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged one-inch height-differential in adjacent sidewalk slabs was not actionable in this slip and fall case: A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip […]

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THE CITY CHARTER PROVISION DID NOT PROVIDE FOR NOTICE OF A PENDING TAX FORECLOSURE SALE TO MORTGAGEES AND THEREBY VIOLATED THE MORTGAGEE’S DUE PROCESS RIGHTS IN THIS PROCEEDING; THE MORTGAGEE’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CITY WAS PROPERLY GRANTED (SECOND DEPT). ​

The Second Department determined the city charter provision did not provide for notice of pending tax lien sales to parties other than the owner which violated the due process rights of mortgagees: “The constitutional guarantee of due process requires that a party who has a substantial property interest which may be affected by a tax […]

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