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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE IT WAS THE HOLDER OF THE NOTE AND DID NOT DEMONSTRATE POSSESSION OF THE NOTE AT THE TIME THE ACTION WAS BROUGHT BECAUSE THE NOTE ITSELF WAS NOT ATTACHED TO THE LOAN SERVICER’S AFFIDAVIT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank should not have been awarded summary judgment in this foreclosure action because it did not demonstrate standing to foreclose:

… [T]here was no evidence that the plaintiff is the assignee of the note, and a triable issue of fact exists as to whether the plaintiff was the holder of the note at the time this action was commenced. A promissory note is a negotiable instrument within the meaning of the Uniform Commercial Code (see UCC 3-104[2][d] …) “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b] [21][A] …). In the present case, there is a triable issue of fact as to whether the note was properly specially endorsed by an allonge “so firmly affixed thereto as to become a part thereof” when it came into the possession of the plaintiff (UCC 3-202[2] …).

Further, the affidavit of Verdooren [loan servicer employee] and the accompanying business records were insufficient to establish the plaintiff’s standing … . Although the foundation for the admission of a business record may be provided by the testimony of the custodian, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” ( … see CPLR 4518[a]). Here, although Verdooren stated that Wells Fargo had possession of the note on the plaintiff’s behalf at the time the action was commenced, the documents attached to Verdooren’s affidavit failed to establish this fact. Bank of N.Y. Mellon Trust Co., N.A. v Andersen, 2022 NY Slip Op 05827, Second Dept 10-19-22

Practice Point: If the defendant raises the lack-of-standing defense in a foreclosure action, the bank must demonstrate the plaintiff was the assignee of the note and the note was in its possession when the action was brought. Here the plaintiff did not show the note was properly endorsed by an attached allonge when it came into plaintiff’s possession and the note was not attached to the loan servicer’s affidavit, rendering the affidavit hearsay.

 

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THE AFFIDAVIT SUBMITTED BY THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF RPAPL 1304 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in this foreclosure action, determined plaintiff bank did not not submit sufficient proof of compliance with the notice-of-default provisions of RPAPL 1304. Among other deficiencies, the documents necessary to prove the notice was mailed were not attached to the affidavit stating the mailing requirements were met:

… [P]laintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Crystal Jean McClelland, a vice president of loan documentation for the plaintiff, stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. The plaintiff failed to provide any documentation from the United States Post Office demonstrating that the notice was sent by registered or certified mail. Further, while McClelland attested that she was familiar with the business records maintained by the plaintiff, had personal knowledge of the operation of and the circumstances surrounding the preparation, maintenance, distribution, and retrieval of records in the plaintiff’s record-keeping system, and had knowledge of how the plaintiff drafted, generated, triggered, sent, and stored letters in the servicing process, she did not present proof of a standard office mailing procedure by the plaintiff designed to ensure that items are properly addressed and mailed. Since the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Kowalski, 2022 NY Slip Op 05887, Second Dept 10-19-22

Practice Point: Another example of what the banks get wrong when trying to prove strict compliance with the foreclosure notice-of-default provisions of RPAPL 1304 at the summary judgment stage.

 

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THE MAJORITY DETERMINED PLAINTIFF DID NOT TIE HIS DIMINISHED RANGE OF MOTION TO THE TRAFFIC ACCIDENT, AS OPPOSED TO HIS PRE-EXISTING CONDITIONS, AND THEREFORE PLAINTIFF DID NOT DEMONSTRATE “SERIOUS INJURY;” THE DISSENT ARGUED THE NATURE OF THE ACCIDENT (DEFENDANTS’ TRUCK REAR-ENDED PLAINTIFF’S CAR AT 45 MILES PER HOUR) SHOULD BE CONSIDERED AND DEFENDANT MUST TAKE THE PLAINTIFF AS HE OR SHE FINDS HIM (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined plaintiff did not raise a question of fact about whether he suffered serious injury within the meaning of Insurance Law 5102 in this rear-end traffic accident case. [Editor’s Note: Decisions determining whether plaintiff suffered “serious injury” within the meaning of the No-Fault Law are not covered in the New York Appellate Digest because each analysis is necessarily unique and fact-specific. This “serious injury” decision has been summarized because there is a two-justice dissent arguing (1) the nature of the accident, defendants’ truck rear-ending plaintiff’s car at 45 miles per hour, should have been considered, (2) the defendant must take the plaintiff as he or she finds him, and (3) there are questions of fact whether plaintiff’s pre-existing conditions were aggravated by the accident.]:

… [P]laintiff did not provide … objective medical evidence distinguishing his preexisting back condition from its purported exacerbation in the November 2016 accident — such as, for example, proof tying the diminished ranges of motion observed by [plaintiff’s expert] in March 2021 to the November 2016 accident rather than plaintiff’s prior degenerative back problems — or demonstrating a causal link between any exacerbation and the self-reported limitations on plaintiff’s activities for purposes of his 90/180-day claim … .

From the dissent:

The facts regarding the accident are not in dispute. Defendant Alton E. Horn was driving a 1998 Kenworth tractor trailer at a speed of 45 miles per hour when he rear-ended plaintiff. While we could find no postaccident photographs of the vehicles in the record, Horn stated that the impact bent his bumper and pushed the hood up on his tractor trailer, and plaintiff referred to his vehicle as “totaled.” Plaintiff was removed from the scene by ambulance and was administered morphine en route to the hospital. Although plaintiff was released from the hospital that night, he reported that he was bedridden for the next 10 days. During oral argument, defendants’ counsel urged us to ignore these facts attendant to the actual accident, however we could find no case law that mandates that the Court leave its common sense at the door. Simply put, the facts do matter. Finally, it is undisputed that, although plaintiff had not undergone surgery to alleviate the discomfort in his lower back before the accident, he has since.

… [E]very first-year law student is aware of the eggshell plaintiff axiom, namely that the defendant must take the plaintiff as he or she finds him, i.e., the plaintiff may recover to the extent that the accident aggravated his or her preexisting conditions … . Lemieux v Horn, 2022 NY Slip Op 05739, Second Dept 10-13-22

Practice Point: The majority concluded the plaintiff’s evidence did not link his current range of motion limitations to the traffic accident, as opposed to his pre-existing conditions. Therefore plaintiff did not demonstrate “serious injury” within the meaning of the Insurance Law. The two-justice dissent argued the nature of the accident–defendants’ truck rear-ended plaintiff’s car at 45 miles per hour–and plaintiff’s medical evidence raised a question of fact about whether plaintiff’s pre-existing conditions were aggravated by the accident.

 

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A DRAINAGE GRATE WHICH DOES NOT VIOLATE ANY CODE AND WHICH IS NOT DEFECTIVE IS NOT A DANGEROUS CONDITION SIMPLY BECAUSE IT WAS WET FROM RAIN AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the drainage grate on which plaintiff slipped and fell was not a dangerous or defective condition. The grate did not violate any code and was not defective. The fact that the grate was wet from falling rain did not demonstrate a dangerous condition:

A property owner has a duty to maintain his or her premises in a reasonably safe condition … . “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a dangerous or defective condition upon the landowner’s property, the plaintiff must establish, among other things, that a dangerous or defective condition actually existed” … . Here, the defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that the metal drainage grate, which was not in violation of any applicable code, was not in a defective or hazardous condition and that it maintained its premises in a reasonably safe condition … . The mere fact that the grate was wet from the falling rain was insufficient to establish the existence of a dangerous condition … . Shuttleworth v Saint Margaret’s R.C. Church in Middle Vil., 2022 NY Slip Op 05730, Second Dept 10-12-22

Practice Point: Here a drainage grate which did not violate any code and which was not defective was not a dangerous condition simply because it was wet with rain at the time of the slip and fall.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support finding mother abused her two-month old child. The child, who was removed from the scene by the grandmother before the acts of domestic violence took place:

“‘[A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'” … . “However, ‘exposing a child to domestic violence is not presumptively neglectful,'” and “‘[n]ot every child exposed to domestic violence is at risk of impairment'” . “The Legislature’s requirement of actual or imminent danger of impairment prevents st… ate intrusion into private family life in the absence of ‘serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior'” … .

While testimony was elicited from the paternal grandmother that the subject child, then under two months old, was somewhere in an apartment with the mother and the father while they yelled at each other, the grandmother testified that she removed the child from that apartment prior to any acts of domestic violence. The evidence that the mother and the father engaged in a loud verbal argument in the presence of their infant child was insufficient to establish that the child’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired … . Matter of Kingston T. (Diamond T.), 2022 NY Slip Op 05694, Second Dept 10-12-22

Practice Point: Mother’s two-month-old child may have heard loud arguing before grandmother removed the child from the scene. The evidence did not support a finding mother neglected the child by exposing the child to domestic violence.

 

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ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT). ​

The Second Department, modifying Family Court, determined that although father demonstrated his failure to pay child support was not willful, a money judgment for father’s failure to obey a lawful order of child support should have been entered:

“Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support” … . Here, the mother presented evidence at the hearing of the father’s failure to pay child support as ordered. Specifically, the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support in the sum of $19,591.43. Therefore, the mother met her prima facie burden … .

The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order was not willful … . The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. “Great deference should be given to the credibility determinations of the Support Magistrate, who is in the best position to assess the credibility of the witnesses” … .. Under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful.

Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should be entered in favor of the mother for the amount of child support arrears that accrued during the relevant period … . Matter of Santman v Schonfeldt, 2022 NY Slip Op 05693, Second Dept 10-12-22

Practice Point: Here father demonstrated his failure to pay child support was not willful. But the court still should have entered a money judgment against father based upon his failure to obey a lawful order of child support.

 

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THE EVIDENCE SUPPORTED THE FINDING OF A SINGLE INSTANCE OF NEGLECT OF FATHER’S 14-YEAR-OLD DAUGHTER; BUT THAT EVIDENCE DID NOT SUPPORT A FINDING OF DERIVATIVE NEGLECT RE: FATHER’S YOUNGER DAUGHTER (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the evidence supporting the finding that father abused his 14-year-old daughter, Heymi M., on one occasion on a camping trip, but that evidence did not support the finding of derivative neglect re: the younger child, Katherine L.:

… [T]here was a nine-year age difference between Heymi M., the child found to have been abused, and the other child, Katherine L. Moreover, the evidence adduced at the hearing shows that the children had different mothers, different living situations, and markedly different relationships with the father. Among other things, the younger child, Katherine L., lived with the father for her entire life but the older child, Heymi M., only started having contact with the father approximately one year before the incident of abuse. Additionally, the record reflects that the abuse occurred on one occasion outside the home, Katherine L. was not in the room when it occurred, and there is no evidence that Katherine L. was aware of the abuse…. . Matter of Katherine L. (Adrian L.), 2022 NY Slip Op 05691, Second Dept 10-12-22

Practice Point: The finding that father abused his 14-year-old daughter on one occasion on a camping trip did not support the finding of derivative neglect re: father’s younger daughter.

 

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DEFENDANT’S GENERAL AWARENESS THAT PUDDLES FORMED IN THE AREA OF PLAINTIFF’S SLIP AND FALL AND THAT WATER TURNS TO ICE WAS NOT ENOUGH TO DEMONSTRATE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE ICY CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant had constructive notice of the icy condition where she slipped and fell. The fact that defendant may have been aware that puddles of water formed in that area was not enough:

The plaintiff’s submissions demonstrated that the defendant had a general awareness that puddles of water formed on the portion of the sidewalk or pathway where the plaintiff fell. However, the defendant’s general awareness that puddles of water formed in the precise location of the plaintiff’s fall is not sufficient to impute actual or constructive notice of the specific ice condition that caused her to fall … . The plaintiff submitted no evidence to show that the defendant was aware that ice formed in the area of the puddled water where the plaintiff fell … . General awareness that water can turn to ice is legally insufficient to constitute constructive notice of the particular ice condition that caused the plaintiff to fall … . The plaintiff’s submissions also failed to establish, prima facie, that the ice condition was otherwise visible and apparent, and had formed a sufficient period of time before the accident for the defendant to have discovered and remedied the condition … .  McDonnell v Our Lady of Mercy R.C. Church, 2022 NY Slip Op 05686, Second Dept 10-12-22

Practice Point: Defendant’s general awareness that puddles form in the area where plaintiff slipped and fell and that water turns to ice did not demonstrate defendant had constructive notice of the icy condition.

 

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A QUESTION OF FACT WHETHER THE PARTIES AGREED TO ARBITRATE THE DISPUTE REQUIRES A FRAMED-ISSUE HEARING; THE PROPER PROCEDURE IF ARBITRATION IS REQUIRED IS TO STAY THE UNDERLYING SUIT, NOT DISMISS IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1)  there was a question of fact whether the parties agreed to arbitrate the dispute, requiring a framed-issue hearing; and (2) arbitration is not a defense to an action; so where arbitration is required the underlying action is stayed, not dismissed:

… [Q]uestions of fact exist as to whether the parties agreed to arbitrate the instant dispute, which questions require a hearing (see CPLR 7503[a] …). We therefore remit the matter … for a framed-issue hearing, and thereafter, a new determination of that branch of [the] motion which was pursuant to CPLR 7503 to compel arbitration.

… Supreme Court should have denied [the] motion which was pursuant to CPLR 3211(a)(1) to dismiss the … complaint based upon the arbitration agreement. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . The proper remedy, should a valid agreement to arbitrate exist, is an order compelling arbitration, which operates to stay the action (see CPLR 7503[a] …). Ferarro v East Coast Dormer, Inc., 2022 NY Slip Op 05679, Second Dept 10-12-22

Practice Point: If there is a question of fact whether the parties agreed to arbitrate a dispute, a framed-issue hearing is required. If there is a valid agreement to arbitrate, the underlying action should be stayed pending the arbitration, not dismissed.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert affidavit in this medical malpractice action was conclusory and speculative, and therefore did not raise a question of fact:

The plaintiff submitted the affidavit of her expert, a physician board certified in vascular surgery, who agreed with [defendant} Mansouri’s plan to perform right femoral popliteal bypass surgery. The plaintiff’s expert further opined, however, that Mansouri departed from the accepted standard of care by not choosing a different vessel once he found the popliteal artery to be diseased with plaque. The expert’s affidavit was conclusory and speculative. While the expert opined that Mansouri should have used a different vessel, he failed to specify which vessel should have been used … . For that same reason, the assertion by the plaintiff’s expert that “the vessel should have been bypassed more distally” was conclusory and speculative. Moreover, the opinion of the plaintiff’s expert that Mansouri deviated from good and accepted medical practice by failing to verify that the plaintiff had sufficient perfusion after the surgery is unsupported by competent evidence … . Coffey v Mansouri, 2022 NY Slip Op 05678, Second Dept 10-12-22

Practice Point: The plaintiff’s expert’s affidavit in this medical malpractice case was deemed speculative, conclusory and unsupported by competent evidence. Defendants’ motion for summary judgment should have been granted.

 

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