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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape:

… [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff’s motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling … . While the verdict is supported by sufficient evidence, that error was not harmless. Hegbeli v TJX Cos., Inc., 2022 NY Slip Op 00502, First Dept 1-27-22

 

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A PRE-JOINDER MOTION FOR SUMMARY JUDGMENT MUST BE DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a pre-joinder motion for summary judgment must be denied:

The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). While CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss as a motion for summary judgment before issue is joined, that is not the case here, where [plaintiff] moved directly for summary judgment; thus, a motion for summary judgment brought before a defendant has answered the complaint is premature and must be denied … . SHG Resources, LLC v SYTR Real Estate Holdings LLC, 2022 NY Slip Op 00525, First Dept 1-27-22

 

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DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant should not have been awarded summary judgment on the liquidated damages counterclaim because defendant had withheld payment on the contract as an offset to the liquidated damages:

Supreme Court should have denied summary judgment in defendant’s favor on the liquidated damages counterclaim. To be sure, the liquidated damages provision of the contract, providing for damages of $100 for each day that plaintiff failed to timely respond to a request for repairs or to complete repairs already begun and $100 for failing to timely provide a written estimate, was not an unenforceable penalty … . However, to the extent defendant has withheld payment from plaintiff for work performed to offset liquidated damages, the award of liquidated damages constitutes a double recovery. Summit Rest. Repairs & Sales, Inc. v New York City Dept. of Educ., 2022 NY Slip Op 00526, First Dept 1-27-22

 

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE NOTE SUBMITTED BY THE BANK TO DEMONSTRATE STANDING TO FORECLOSE WAS THE NOTE SHE SIGNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant had raised a question of fact whether the bank had standing to foreclosure by producing a note that was different from the note submitted by the bank to demonstrate standing:

… [T]he defendant raised a triable issue of fact as to whether the plaintiff had produced the unpaid note and had standing to commence the action, by submitting, among other things, a copy of another version of the note, purportedly produced by the plaintiff in this litigation, bearing a different version of the defendant’s purported signature and initials than the note relied upon by the plaintiff in support of its motion. In an affidavit submitted in opposition to the plaintiff’s motion, the defendant averred that she only signed one copy of the note at closing, and denied that any of the copies of the note produced by the plaintiff were the note she signed … . JPMorgan Chase Bank, N.A. v Rodriguez, 2022 NY Slip Op 00411, Second Dept 1-26-22

 

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SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE; PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a mistrial in this medical malpractice action should have been granted. The trial judge should not have precluded plaintiff’s expert’s testimony on the ground the scope of the testimony exceeded the CPLR 3101 (d) disclosure:

Because portions of the expert’s testimony purportedly fell outside the notice pursuant to CPLR 3101(d), the Supreme Court struck all of this expert’s testimony concerning [defendants] Inglis and Shukla. However, even assuming that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, it was error to strike all of his testimony concerning Inglis and Shukla. … [T]o the extent that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, the relevant subject matter was raised in the bills of particulars and in the expert’s affirmation submitted in opposition to the defendants’ motions for summary judgment. Under these circumstances, the court improvidently struck the expert’s testimony concerning the treatment provided by Inglis and Shukla … .

In addition, the Supreme Court sustained objections to questions of the same expert about whether Mosu departed from the accepted standard of care, for a lack of foundation. The court erred in precluding the expert from testifying as to whether Mosu departed from the accepted standard of care since there was a foundation for the expert’s testimony, including the defendants’ and plaintiff’s trial testimony, and the relevant medical records … . Johnson-Hendy v Mosu, 2022 NY Slip Op 00409, Second Dept 1-26-22

 

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THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304:

… [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the action was commenced … . Moreover, the plaintiff failed to establish its status as the holder of the note at the time of commencement of the action … . * * *

The plaintiff failed to establish … it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . [Plaintiff] failed to provide proof of a standard office mailing procedure and provided no independent evidence of the actual mailing … . For the same reason, the plaintiff failed to establish … it sent the defendant the required notice under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Crosby, 2022 NY Slip Op 00402, Second Dept 1-26-22

 

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, the plaintiffs moved, among other things, to extend their time to file a note of issue. Subsequently, this action was administratively dismissed on December 26, 2017, for failure to file a note of issue, and the plaintiffs’ motion was “marked off” the calendar on January 10, 2018. On or about January 31, 2019, the plaintiffs moved, inter alia, to restore the action to the active calendar. In an order dated February 26, 2019, the Supreme Court denied the plaintiffs’ motion on the ground that they had failed to move to restore the action within the one-year time limit of CPLR 3404. The plaintiffs appeal.

CPLR 3404 does not apply to this pre-note of issue action … . Since the action could not properly be marked off pursuant to CPLR 3404, the plaintiffs were “not required to move to restore within any specified time frame” … . Further, there was neither a 90-day demand pursuant to CPLR 3216 … , nor an order dismissing the action pursuant to 22 NYCRR 202.27 … . Wynn v Wynn-Wright, 2022 NY Slip Op 00466, Second Dept 1-26-22

 

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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 submitted a copy of the consolidated note that contained slightly different signatures of the defendants than the copy appended to the CEMA [consolidation, extension, and modification agreement], did not provide a sufficient basis to deny the plaintiff’s motion … . The defendants do not dispute that they signed the consolidated notes, including the one under which the plaintiff wished to proceed, nor do they claim that there were any differences in the terms of the notes … . Furthermore, the defendants’ mere denial of receipt of the RPAPL 1304 notices was insufficient to raise a triable issue of fact warranting denial of the motion … . Wilmington Sav. Fund Socy. v Theagene, 2022 NY Slip Op 00465, Second Dept 1-26-22

 

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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 inasmuch as the computation was premised upon unproduced business records” … . We therefore reverse the order and judgment of foreclosure and sale and remit the matter to the Supreme Court … for a new report computing the amount due, to be followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter … . Wells Fargo Bank, N.A. v Dhanani, 2022 NY Slip Op 00460, Second Dept 1-26-22

 

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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” … . A note can also be endorsed in blank, naming no specific payee, which makes it a bearer instrument, so that any party that possesses it has the legal authority to enforce it (see UCC 3-202[1]; 3-204[2] …). …

The version of the note that contained the special endorsement by GreenPoint to GMAC …, which was submitted in the 2008 foreclosure action, was not consistent with the endorsement in blank by GreenPoint. If the note was specially endorsed to GMAC, it would subsequently had to have been specially endorsed to the plaintiff or endorsed in blank by GMAC in order for the plaintiff to enforce it (see UCC 3-202[1]; 3-204[1] … ). Thus, the defendants raised a triable issue of fact as to whether the plaintiff possessed the legal authority to enforce the note at the time this action was commenced … . U.S. Bank N.A. v Rozo-Castellanos, 2022 NY Slip Op 00457, Second Dept 1-26-22

 

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