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THE AFFIDAVITS SUBMITTED TO PROVE THE BANK’S STANDING TO BRING THE FORECLOSURE ACTION WERE NOT ACCOMPANIED BY THE RELEVANT DOCUMENTS AND THEREFORE CONSTITUTED INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavits purporting to demonstrate the bank’s standing to bring the foreclosure action were not accompanied by the relevant documents and therefore constituted inadmissible hearsay:

… [I]n order to establish standing, the plaintiff submitted affidavits from two contract management coordinators of the plaintiff’s loan servicer, Ocwen Loan Servicing, each of whom stated that the plaintiff was in possession of the note at the time the action was commenced. However, neither affiant identified any particular document reviewed that pertained to the issue of standing, nor did they attach to their respective affidavits any admissible document to show that the plaintiff possessed the note at the time of the commencement of this action. The affidavits also failed to show that either affiant possessed personal knowledge of whether the plaintiff possessed the note at the time of the commencement of the action. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value (see CPLR 4518[a] …). Thus, the plaintiff failed to establish its standing to commence this action. Deutsche Bank Natl. Trust Co. v Idarecis, 2022 NY Slip Op 01144, Second Dept 2-23-22

 

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THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff-bank’s motion to vacate the conditional order of dismissal in this foreclosure action should have been granted. The conditional order of dismissal did not meet the requirements of CPLR 3216 and therefore did not dismiss the action as abandoned:

… [T]he conditional order of dismissal “was defective in that it failed to state that the plaintiff’s failure to comply with the notice ‘will serve as a basis for a motion’ by the court to dismiss the action for failure to prosecute” … . Moreover, there was no indication that the plaintiff’s counsel was present at the status conference at which the Supreme Court issued the conditional order of dismissal, nor was there evidence that the conditional order of dismissal was ever properly served upon the plaintiff … . In addition, notwithstanding the statement in the conditional order of dismissal that “more than one year ha[d] elapsed since the joinder of issue,” there is no dispute that issue was not joined … .. Accordingly, the court should have granted the plaintiff’s motion to vacate the conditional order of dismissal, and to restore the action to the active calendar…. . Deutsche Bank Natl. Trust Co. v Beckford, 2022 NY Slip Op 01143, Second Dept 2-23-22

 

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THE BANK FAILED TO SUBMIT THE BUSINESS RECORDS RELIED ON IN ITS AFFIDAVIT IN THIS FORECLOSURE ACTION RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY; SUPREME COURT’S DETERMINATION THE BANK HAD COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE WAS THE LAW OF THE CASE PRECLUDING RECONSIDERATION OF THE ISSUE PURSUANT TO DEFENDANTS’ CROSS MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the failure to identify and attach the documents demonstrating the defendants’ default in this foreclosure action rendered the bank’s affidavit inadmissible hearsay. The court noted that Supreme Court’s determination the bank had complied with the notice requirements of RPAL 1304 was the law of the case precluding reconsideration of the issue pursuant to defendants’ cross motion:

The plaintiff relied upon the affidavit of Richard L. Penno, a vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff’s loan servicer. Based upon his review of Wells Fargo’s books and records concerning the defendants’ loan, Penno attested to the defendants’ default in payment. However, Penno did not identify the records he relied upon in order to attest to the defendants’ default and did not attach them to his affidavit … . “While 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” … . Thus, Penno’s assertions as to the contents of Wells Fargo’s servicing records were inadmissible … . Contrary to the plaintiff’s contention, a review of records maintained in the normal course of business does not vest an affiant with personal knowledge … . …

… [C]ontrary to the defendants’ … contention, the Supreme Court properly denied that branch of their cross motion which was to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304 and the notice of default provision of the mortgage agreement. The plaintiff’s strict compliance with RPAPL 1304 and the notice of default provision of the mortgage agreement were both considered and decided in the plaintiff’s favor on its motion for summary judgment. Therefore, while it is true that a defense based on noncompliance with RPAPL 1304 may be raised at any time … , the doctrine of law of the case precluded the court from reconsidering those issues on the defendants’ cross motion … . U.S. Bank N.A. v Ramanababu, 2022 NY Slip Op 01199, Second Dept 2-23-22

 

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BECAUSE PLAINTIFF’S DECEDENT COULD NOT COMMENCE A LEGAL MALPRACTICE ACTION WHILE THE DEFENDANTS-ATTORNEYS STILL REPRESENTED HIM, THERE WAS A QUESTION OF FACT WHETHER THE ACTION WAS TIMELY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a decision addressing several issues not summarized here, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

… [T]he plaintiffs raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until June 24, 2013, when the Supreme Court … vacated the March 18, 2013 order, and … granted W & H’s [defendants-attorneys] motion for leave to withdraw as counsel. Inasmuch as W & H’s motion to withdraw as counsel, which was opposed by Michele [plaintiff’s decedent] , was initially denied, Michele could not be expected to commence an action to recover damages for legal malpractice against W & H while the representation continued … . Accordingly, the court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the legal malpractice cause of action as time-barred. Tulino v Hiller, P.C., 2022 NY Slip Op 01197, Second Dept 2-23-22

 

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IN THIS TENANT HARASSMENT AND PRIVATE NUISANCE ACTION BY TENANTS AGAINST THE LANDLORD, SUPREME COURT SHOULD HAVE GRANTED THE PRELIMINARY INJUNCTION ENTIRELY PROHIBITING VIDEO CAMERAS IN THE INTERIOR OF THE BUILDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant-plaintiffs were entitled to a preliminary injunction prohibiting the landlord from maintaining video cameras in the interior of the building. Supreme Court had only prohibited video cameras outside the bathrooms. The tenants alleged the landlord was taking actions designed to force them to leave and alleged causes of action for tenant harassment and private nuisance:

Generally, the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court … . “[A] movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant’s favor” … . In granting, in part, those branches of the plaintiffs’ motion which were for a preliminary injunction enjoining the defendants from operating the video cameras in the interior portions of the property and from conducting inspections on the property without reasonable notice, the court properly, in effect, determined that the plaintiffs had established a probability of success on the merits, a danger of irreparable injury, and that the equities favor them. The court, however, improvidently exercised its discretion in limiting that preliminary injunction to enjoining the defendants only from operating video cameras that capture persons entering or exiting any bathrooms in the property. Under the circumstances of this case, the court should have granted that branch of the plaintiffs’ motion in its entirety, and preliminarily enjoined the defendants from operating video cameras in the interior portions of the property. Suchdev v Grunbaum, 2022 NY Slip Op 01195, Second Dept 2-23-22

 

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THE NOTICE OF TERMINATION OF A LEASE DID NOT COMPLY WITH THE HUD REGULATION REQUIRING THAT THE REASONS FOR TERMINATION BE STATED WITH ENOUGH SPECIFICITY TO ALLOW THE TENANT TO MOUNT A DEFENSE; EVICTION ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, determined the landlord did not comply with the HUD regulation requiring that a notice of termination of a lease state the reasons for the termination with enough specificity to allow the tenant to mount a defense. The issue was raised by respondent-tenant’s oral general denial:

In our view, the notice of termination was deficient, as it did not set forth the factual predicates underlying the alleged violation of the lease terms, instead merely paraphrasing the lease and the underlying regulation … . No specific incident is described in the notice, nor are any specific facts. The regulatory standard of requiring “enough specificity so as to enable the tenant to prepare a defense” demands more detail as to the nature of the asserted misconduct (24 CFR 247.4 [a] [2]). Matter of Metro Plaza Apts., Inc. v Buchanan, 2022 NY Slip Op 01087, Third Dept 2-17-22

 

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PLAINTIFF’S ACTIONS WERE NOT THE SOLE PROXIMATE CAUSE OF HIS FALL FROM A MAKESHIFT PLATFORM ON A LULL (FORKLIFT) USED TO REACH ELEVATED AREAS; PLAINTIFF’S MOTION FOR A DIRECTED VERDICT ON HIS LABOR LAW 240(1) CAUSE OF ACTION AGAINST THE HOMEOWNER WHO LEASED THE LULL AND DIRECTED PLAINTIFF’S WORK SHOULD HAVE BEEN GRANTED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff’s motion for a directed verdict on his Labor law 241(6) cause of action should have been granted. Plaintiff fell from a makeshift platform he placed on a lull (forklift) to reach elevated areas of a house he was wrapping with an insulation material (Tyvek). The central question was whether plaintiff’s own actions were the sole proximate cause of his fall and injuries:

… [I]t is beyond dispute that the lull was not an adequate safety device for the elevated work being performed by plaintiff at the time of his fall … . This conclusion is not changed by defendant’s provision of harnesses incompatible with the lull … . Plaintiff’s accident was plainly the direct result of the makeshift lull setup failing, and the parties are therefore in agreement that, unless plaintiff’s choice not to use other available safety devices when installing the Tyvek was the sole proximate cause of his own injuries, plaintiff has established his Labor Law § 240 (1) claim.

Plaintiff indeed brought extension ladders and scaffolding with him to the job site, and it appears that defendant provided some ladders as well. …[T]here is simply no trial evidence to suggest that plaintiff knew he was expected to use a ladder or scaffolding to wrap the front of the house with Tyvek. It is uncontroverted that use of the lull with a makeshift platform had become commonplace at the job site in the weeks preceding plaintiff’s accident, that the scaffolding was set up at the rear of the house specifically because the lull could not traverse the terrain there and that defendant’s only affirmative safety-related instructions to plaintiff regarding the subject elevated work were to either use a harness or construct a platform, both of which involved use of the lull. As proof of the foregoing element is lacking, there is no rational process by which a jury could conclude that plaintiff was the sole proximate cause of his own injuries … . DeGraff v Colontonio, 2022 NY Slip Op 01074, Third Dept 2-17-22

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT PARTIAL SUMMARY JUDGMENT ON THE STRUCTURE-LOSS (FIRE-DAMAGE) CLAIM; THE PARTIES WERE NOT MADE AWARE OF THAT POSSIBILITY PRIOR TO THE RULING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decision addressing many property-insurance (fire loss) issues not summarized here, determined the judge should not have, sua sponte, granted a motion for partial summary judgment:

… Supreme Court erred in sua sponte granting LaVigne [defednant] summary judgment on her structure loss claim as no party had moved on or briefed relative to this claim. We agree. “Although a court may not generally grant summary judgment sua sponte in the absence of a motion pursuant to CPLR 3212, in certain circumstances, a court may grant such relief, even if it is not demanded, so long as there is no substantial prejudice to the adverse party. In such cases, [this Court] require[s] that the court give notice to the parties that summary judgment is being considered as a remedy, so that they may develop evidence and offer proof in support of or in opposition to the motion” … . Here, although the court did ask questions regarding the structure loss claim at oral argument, we do not find that to be sufficient notice that summary judgment was being considered and, as such, the insurance company was substantially prejudiced … . … [I]t is clear from the record that the parties were not “deliberately charting a course for summary judgment” … , and in fact were quite surprised by the Supreme Court’s questions regarding summary judgment on this claim. Moreover, it appears from the record that the insurance company did not depose LaVigne. Collyer v LaVigne, 2022 NY Slip Op 01083, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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THE FAILURE TO TIMELY FILE THE CERTIFICATE OF MERIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT A GROUND FOR DIMSISSAL OF THE COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined, under the facts, plaintiff had not abandoned this medical malpractice action and plaintiff’s failure to timely file the certificate of merit was not a ground for dismissal of the complaint:

… [P]laintiff’s attorney filed an alternative certificate with the complaint that he was unable to timely procure the required consultation in view of the impending statute of limitations in accord with CPLR 3012-a (a) (2). In such an instance, the certificate of merit must be filed within 90 days of commencement, a deadline that plaintiff did not meet … . The mere failure to meet that deadline, however, does not require a dismissal of the action … . … [P]laintiff expressly identified his medical expert in the … discovery response. In his opposing affidavit, plaintiff’s counsel explained that the failure to file the certificate of merit was an oversight, i.e., basic law office failure, and further affirmed that he duly consulted with the physician in accord with the requirements of CPLR 3012-a (a) (1). In any event, plaintiff did not formally move for leave to file a late certificate of merit and, therefore, whether plaintiff established good cause under CPLR 2004 for such leave is not at issue … . … [W]e find no basis to dismiss the complaint based on the certificate of merit issue. Duvernoy v CNY Fertility, PLLC, 2022 NY Slip Op 01084, Third Dept 2-17-22

 

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