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DEFENDANT DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it did not have constructive notice of the wet condition which allegedly caused plaintiff’s slip and fall:

Defendant demonstrated prima facie that it did not have actual or constructive notice of the dangerous condition by producing evidence of its maintenance activities on the day of the accident, specifically, that the wet condition did not exist when the stairs were cleaned by the porter less than three hours before plaintiff fell … , and that there were no complaints about a wet condition on the stairs in the morning prior to her accident … . Defendant was not required to produce a written schedule or log of its cleaning activities; the unrefuted testimony of its porter was sufficient. The porter’s testimony also established that there was a reasonable cleaning schedule in place that addressed the alleged ongoing and recurring condition … .

Plaintiff failed to raise an issue of fact concerning who created the wet condition and when … . Plaintiff presented no evidence that the ongoing and recurring condition was routinely left unaddressed by defendant, nor did she raise a factual issue that defendant’s cleaning routine “was manifestly unreasonable so as to require altering it” … . Hartley v Burnside Hous. Dev. Fund Corp., 2022 NY Slip Op 06065, First Dept 10-27-22

Practice Point: The defendant demonstrated it did not have constructive knowledge of the wet condition alleged to have cause plaintiff’s slip and fall by showing the stairs were cleaned three hours before the fall and no one had complained about the wet condition in the morning prior to the fall.

 

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THE CERTIFICATION OF ACKNOWLEDGMENT IS PRIMA FACIE EVIDENCE THE DECEDENT EXECUTED THE CONTRACT, BUT THAT EVIDENCE CREATES ONLY A REBUTTABLE PRESUMPTION; PLAINTIFF PRESENTED SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT WHETHER DECEDENT SIGNED THE AGREEMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the certification of acknowledgment is prima facie proof the contract was executed by decedent but the certification only creates a rebuttable presumption:

… [T]he agreement was notarized by defendant Rosemary Bellini. “Certification of the acknowledgment or proof of a writing . . . in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so” (CPLR 4538). * * *

“The certification of acknowledgment becomes prima facie evidence that the writing was executed by the person who acknowledged having done so. [This] [p]rima facie evidence” is not conclusive; rather, it “creates a rebuttable presumption” … .  Plaintiff marshalled considerable evidence casting doubt on whether decedent actually signed the purported agreement and, if so, whether he knew or understood what he was signing. Thus, plaintiff should be given a chance to rebut the presumption created by Bellini’s notarization … . Langbert v Aconsky, 2022 NY Slip Op 06067, First Dept 10-27-22

Practice Point: Here the certification of acknowledgment was prima facie proof decedent signed the agreement but that proof only creates a rebuttable presumption. But plaintiff raised a question of fact whether decedent actually executed the agreement.

 

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THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the motion to consolidate the trials of two actions stemming from the same fire which damages two adjoining properties should have been granted. The court noted that one party is both a plaintiff and a defendant:

Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion of the trial court … , consolidation or joinder for trial is favored to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts … . “Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a)] to consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion” … .

Here … the two actions involve common questions of law and fact. Assuming, arguendo, that the respondents would be prejudiced if the two actions are tried before the same jury since it would bring to the jury’s attention the existence of insurance … , any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice can be mitigated by appropriate jury instructions … . Moreover, a joint trial, rather than consolidation, is appropriate where a party is both a plaintiff and a defendant … . Calle v 2118 Flatbush Ave. Realty, LLC, 2022 NY Slip Op 05981, Second Dept 10-26-22

Practice Point: Here the motion pursuant to CPLR 602 to consolidate the trials of two actions stemming from the same fire should have been granted. One party was both a defendant and a plaintiff. The fact that consolidation would bring the existence of insurance to the jury’s attention (one of the parties is an insurer), although prejudicial, can be handled by jury instructions.

 

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IN THIS FORECLOSURE ACTION, THE WRONG TYPEFACE IN THE RPAPL 1303 NOTICE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate compliance with the typeface requirements for the RPAPL 1303 notice. Therefore plaintiff’s motion for summary judgment should have been denied:

RPAPL 1303 “requires the foreclosing party to deliver, along with the summons and complaint, a notice titled ‘Help for Homeowners in Foreclosure’ in residential foreclosure actions involving owner-occupied, one-to-four family dwellings. The statute mandates that the notice include specific language relating to the summons and complaint, sources of information and assistance, rights and obligations, and foreclosure rescue scams. It also mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type” … . “Proper service of the notice required by RPAPL 1303 . . . is a condition precedent to the commencement of a foreclosure action, and it is the plaintiff’s burden to show compliance with that statute” … .

Here, the plaintiff failed to meet its prima facie burden since it is not apparent upon review of the copy of the RPAPL 1303 notice served upon the defendant that the correct typeface was utilized. In addition, the process server’s affidavit of service did not indicate that the notice served upon the defendant complied with all of the requirements of RPAPL 1303, including the proper typeface … . MTGLQ Invs., L.P. v Assim, 2022 NY Slip Op 06000, Second Dept 10-26-22

Practice Point: In a foreclosure action, the plaintiff must strictly comply with the notice requirements in RPAPL 1303, including the size of the typeface. The use of the wrong typeface precludes the commencement of the action.

 

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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE FIVE HOUSING COUNSELING AGENCIES LISTED IN THE RPAPL 1304 WERE DESIGNATED BY THE NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) AND THEREFORE DID NOT DEMONSTRATE STRICT COMPLIANCE WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the five housing counseling agencies listed on the 90-day notice were designated by the NYS Division of Housing and Community Renewal (DHCR) at the time the notice was sent:

“It is the plaintiff’s burden, on its motion for summary judgment, to demonstrate its strict compliance with the applicable provisions of RPAPL 1304” … . As relevant here, RPAPL 1304(2) … required that the 90-day notice sent to the borrower “contain a list of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides,” and that the lists of designated agencies published on the websites of the New York State Department of Financial Services (hereinafter DFS) and the DHCR be used by the lender, assignee, or mortgage loan servicer to meet these requirements … .

… [P]laintiff failed to establish … its strict compliance with RPAPL 1304(2), as it failed to demonstrate that the five entities listed on the 90-day notices sent to the defendant were designated by the DHCR as of when the notices were sent … . Bank of N.Y. Mellon v Maldonado, 2022 NY Slip Op 05974, Second Dept 10-26-22

Practice Point: If the bank in a foreclosure action does not demonstrate strict compliance with the notice requirements in RPAPL 1304 it is not entitled to summary judgment. At time of this action, RPAPL 1304 required that five housing counseling agencies be listed in the RPAPL 1304 notice and that the agencies be designated by the Division of Housing and Community Renewal (DHCR). Here the bank didn’t demonstrate the five agencies were so designated so its motion for summary judgment shouldn’t have been granted.

 

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THE BUSINESS RECORDS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT SUBMITTED; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the business records upon which the referee’s calculations were based were not submitted:

Supreme Court erred in granting the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . However, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Although the plaintiff contends that the referee’s report was supported by the affidavit of an employee of its loan servicer, the plaintiff did not submit the business records upon which that employee purportedly relied in computing the total amount due on the mortgage. Consequently, the referee’s findings in that regard were not substantially supported by the record … . Bank of N.Y. Mellon v Conforti, 2022 NY Slip Op 05973, Second Dept 10-26-22

Practice Point: Here the calculations in the referee’s report were based upon business records which were not submitted. Therefore the report was not supported by the record and should not have been confirmed.

 

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THE EVIDENCE INDICATED VISITATION WITH FATHER WOULD NOT BE IN THE BEST INTERESTS OF THE CHILD; FATHER’S PETITION FOR VISITATION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence indicated visitation with father would not be in the best interests of the child and his petition for visitation should not have been granted:

… [I]t is undisputed that the father has not lived with the child in over a decade and has only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father also made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself . . . of opportunities for visitation over a lengthy period of time is appropriately taken into account in considering whether visitation is appropriate” … .

… [T]he mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child and, although the father disputed those claims, we defer to Family Court’s assessment that the father’s testimony was not credible … . * * * [T]he attorney for the child confirmed to Family Court, and now advises us, that the teenage child is upset by interactions with the father for a variety of reasons and does not wish to see him. The child’s preference to have no in-person contact with the father is not dispositive, but is entitled to “considerable weight” given the child’s age … . Matter of Ajmal I. v LaToya J., 2022 NY Slip Op 05912, Third Dept 10-20-22

Practice Point: Although visitation with a parent is generally considered to be in the child’s best interests, here father’s years-long lack of contact with the child, misbehavior during prior contact, and the child’s opposition to visitation, demonstrated visitation with father was not in the child’s best interests. The petition for visitation should not have been granted.

 

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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second:

“To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed “in the light most favorable to the defendant” … . “[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge” … , “[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated” … . * * *

Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to “cause serious physical injury to another person” … . Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the jurors’ minds as to defendant’s intent and how things escalated as quickly as they did … . The testimony at trial regarding defendant entering the bar with a beer, consuming two more drinks prior to being refused service, coupled with the surveillance footage, established that the suspect consumed multiple alcoholic beverages within a short period of time prior to the assault … . Moreover … the surveillance footage revealed that someone looking strikingly similar to defendant consumed several alcoholic beverages hours before the assault and that, upon returning to the bar, exhibited markedly different behavior from earlier in the evening. Additionally, … the People’s expert witness testified that consumption of alcohol in excess can alter one’s personality, which supported his theory of voluntary intoxication. People v Adrian, 2022 NY Slip Op 05896, Third Dept 10-20-22

Practice Point: Here there was sufficient evidence, including expert evidence, of defendant’s intoxication to raise a doubt about whether defendant formulated the intent to commit assault second. Defendant’s request for the intoxication jury charge should have been granted.

 

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THE EVIDENCE DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT, FAMILY COURT REVERSED (THIRD DEPT). ​

The Third Department, revering Family Court, determined the evidence did not demonstrate a change in circumstances sufficient to warrant a modification of the custody arrangement:

The father’s primary contention was that the change in his work schedule constituted a sufficient change in circumstances. In that regard, at the time that the 2016 order was entered, the father was working weekday night shifts. When the father filed the instant petition, his work schedule was such that he was working a continuous four-day-on, four-day-off schedule. However, in the midst of the hearing, the father revealed that his work schedule had again changed, this time to Monday through Thursday from 4:00 p.m. to 2:00 a.m., which aligned much more closely with his schedule as of the 2016 order. In our view, this does not constitute a sufficient change in circumstances to trigger a best interests analysis. As for the other factors relied upon by Family Court, there was no showing that the mother’s new job, the parties’ new residences, their new relationships, or the introduction of half-siblings and a stepsibling into the child’s life “constitute[d] changed circumstances evidencing any infirmity in the present custody arrangement” … . Accordingly, the father failed to meet his burden of establishing the necessary change in circumstances, and the petition should have been dismissed. Matter of Kenneth N. v Elizabeth O., 2022 NY Slip Op 05904, Third Dept 10-20-22

Practice Point: Here the evidence relied on by Family Court did not amount to a change in circumstances warranting a modification of custody. The evidence included: mother’s new job, the parties’ new residences, the parties’ new relationships, and more children.

 

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THE EVIDENCE DID NOT SUPPORT FAMILY COURT’S SUA SPONTE FINDING THERE HAD BEEN A CHANGE IN CIRCUMSTANCES, I.E., A BREAKDOWN IN COMMUNICATION BETWEEN MOTHER AND FATHER, WARRANTING A MODIFICATION OF THE CUSTODY ARRANGEMENT AND AWARDING SOLE CUSTODY TO MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should not have, sua sponte, found there had been a change in circumstances, i.e., a breakdown in communication between mother and father,  justifying awarding sole custody to mother. The evidence did not support the finding that communication had broken down:

… Family Court erred in determining that the parties being unwilling or unable to cooperatively raise the child constituted a change in circumstances and sua sponte modifying the prior order. … Initially, the parties did provide some evidence as to how each has failed to properly communicate with respect to the child, such as the father being unresponsive to the mother’s messages regarding child support payments and the mother failing to inform him that she had unenrolled the child from daycare. However, the mother acknowledged that the father has been able to communicate with her via the TalkingParents app to discuss issues regarding the child, such as custodial exchange dates. The father similarly stated that he has been able to communicate with the mother via email. Thus, although their communication is strained at times, partially as a result of these proceedings, the record does not establish that it has completely broken down … . Indeed, “[t]he record establishes that the parties’ relationship was no more antagonistic during [the relevant time] period than it was at the time of the entry of the original order” … , which, in this case, was only two months prior to the filing of the father’s petition. Accordingly, Family Court should not have proceeded to a best interest analysis and, instead, should have continued the joint legal custody arrangement reflected in the prior order … .Matter of Karl II. v Maurica JJ., 2022 NY Slip Op 05905, Third Dept 10-20-22

Practice Point: Here the evidence did not support the Family Court judge’s sua sponte finding that communication between mother and father had broken down warranting a modification of the custody arrangement.

 

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