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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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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 a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action” … .

Here, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, as the plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . The affidavit of the plaintiff’s employee and the copy of the note attached thereto which were submitted in support of the plaintiff’s motion for summary judgment did not clarify whether the allonge was firmly affixed to the note … . Nationstar Mtge., LLC v Calomarde, 2022 NY Slip Op 00428, Second Dept 1-26-22

 

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THE NOTICE OF CLAIM ACT DOES NOT APPLY TO THE PORT AUTHORITY, WHICH IS A BISTATE ENTITY (NEW YORK AND NEW JERSEY) CREATED BY COMPACT (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the action against the Port Authority was time-barred pursuant to New York and New Jersey law, noting that the Notice of Claim Act does not apply:

… [N]either CPLR 217-a nor New York Unconsolidated Laws § 6412-a — both of which were enacted as part of the Uniform Notice of Claim Act … — extends the time in which an action may be commenced against the Port Authority. CPLR 217-a does not apply to the Port Authority because it is not a “political subdivision of the state, . . . instrumentality or agency of the state or a political subdivision, . . . public authority[,] or . . . public benefit corporation entitled to receive a notice of claim as a condition precedent to commencement of an action” within the meaning of the statute; rather, it is a bistate agency … . What is more, New Jersey has not enacted identical legislation … . and bistate entities created by compact are not subject to the unilateral control of any one state … . McKenzie v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 00378, First Dept 1-25-22

 

THE PLAINTIFFS’ REQUEST TO PROCEED ANONYMOUSLY IN THIS CHILD VICTIMS ACT CASE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF ANY HARM WHICH WOULD RESULT FROM USING PLAINTIFFS’ LEGAL NAMES IN THE CAPTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiffs in this Child Victims Act action should not have been allowed to proceed anonymously. The request was not supported by sufficient evidence of harm which would result from using plaintiff’s legal names in the caption:

Several New York courts “have addressed the legislature’s intent in enacting the CVA [Child Victims Act] with respect to the use of pseudonyms and concluded that the legislature ‘left it up to each alleged victim to determine whether to seek anonymity’ . . . [and] ‘left it to the courts to assess each individual case'” … . This Court has held that permission to use a pseudonym will not be granted automatically and has noted that the motion court “should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it” … . In determining whether to grant a plaintiff’s request to proceed anonymously, the motion court must “‘use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant'”… . A plaintiff seeking permission to proceed anonymously by employing a pseudonym must provide facts specific to the plaintiff that will allow the motion court to exercise its discretion in an informed manner … .

Here, plaintiffs’ motion to allow 33 unnamed plaintiffs to proceed anonymously should have been denied because plaintiffs failed to submit sufficient evidence to support the relief requested. Plaintiffs only submitted a short attorney affirmation, which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm should their identities be revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously … . Twersky v Yeshiva Univ., 2022 NY Slip Op 00366, First Dept 1-20-22

 

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IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this elevator accident case was entitled to a conditional judgment (pending determination of the primary action) against the elevator maintenance company (Otis) for contractual indemnification:

“A court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed” … . To obtain conditional relief on a claim for contractual indemnification, “the one seeking indemnity need only establish that it was free from any negligence and [may be] held liable solely by virtue of . . . statutory [or vicarious] liability” … .

… [The building-owner] defendants established their … entitlement to judgment as a matter of law by showing that they did not have notice of the alleged defect in the subject elevator … , and Otis did not notify the [them] when repairs and/or maintenance was performed on the elevators in the building. Winter v ESRT Empire State Bldg., LLC, 2022 NY Slip Op 00333, Second Dept 1-19-22

 

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EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

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