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THERE WAS NO PROOF DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE AREA WHERE THE DRUGS WERE FOUND; DEFENDANT’S MERE PRESENCE IN THE VICINITY OF THE DRUGS DID NOT PROVE HIS POSSESSION OF THE DRUGS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a controlled substance conviction and dismissing the indictment, determined defendant’s constructive possession of the drugs was not demonstrated. There was no proof defendant exercised dominion and control over the area in which the drugs were found, as opposed to merely being present in the vicinity of the drugs:

Where there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized” … . The People may establish constructive possession by circumstantial evidence … , but a defendant’s mere presence in the area in which contraband is discovered is insufficient to establish constructive possession … . People v Mighty, 2022 NY Slip Op 01923, Fourth Dept 3-18-18

Practice Point: If a defendant does not physically possess the drugs, to prove constructive possession, the People must demonstrate the defendant exercised dominion and control over the area where the drugs were found, perhaps by proving defendant resided there, for example.

 

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THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s neglect finding, determined the finding was not supported by the preponderance of the evidence:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence … , first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .. In considering whether the requisite minimum degree of care was provided, “[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing” … . Here, the evidence at the fact-finding hearing establishes that the mother acknowledged her mental health issues and had been compliant with treatment following her discovery that she was pregnant … ; and that she was engaged in a supportive housing program that would allow her to care for the child, thereby limiting any extended need for foster care … . Matter of Isabella S. (Nicole S.), 2022 NY Slip Op 01897, Fourth Dept 3-18-22

Practice Point: Although the specific allegations of neglect are not described in this decision, the criteria for a neglect finding are clearly explained.

 

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THE POLICE MISTAKENLY BELIEVED THE MAN IN A MOTEL ROOM (DEFENDANT) WAS A SUSPECT IN A SHOOTING; AN INFORMANT HAD TOLD THE POLICE THE MAN IN THE ROOM WAS FROM ROCHESTER, HIS NICKNAME WAS “JAY” AND HE “HAD A WARRANT;” WHEN THE MAN LEFT THE ROOM, THE POLICE STOPPED HIS TAXI; THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion and dismissing the indictment, determined the People did not demonstrate the legality of the defective’s order to stop the taxi in which defendant was a passenger. An informant told the police a man in a motel room was from Rochester, his nickname was “Jay,” and he “had a warrant.” The detective believed the man in the motel room was a suspect in a shooting which occurred a month before. Surveillance was set up and the detective was told a man had left the room and gotten into a taxi. The defective, who did not see the man leave the room, ordered the stop of the taxi: It turned out that defendant was not the shooting suspect. He was charged with possession of a controlled substance:

At the suppression hearing, a police detective testified that he directed the stop of the taxi based on a belief that defendant was in fact a different man whom authorities had identified as a suspect in a shooting that had occurred over a month earlier. …

The detective conceded that he had never seen a still photo of the suspect, that the video of the shooting that he did view lacked detail, and that he was unaware of whether the suspect’s actual height, weight, skin tone, or other specific discernable characteristic were on the arrest warrant for the shooting suspect. Further, the informant never identified the man in the motel room as the shooter, and the vague description given, i.e., that the man was from Rochester, that his nickname was the ubiquitous “Jay,” and that he “had a warrant”, is too generalized to support the reasonable suspicion required for the officers’ stop of the taxi … . … This is also not a case in which the “proximity of the defendant to the site of the crime[ and] the brief period of time between the crime and the discovery of the defendant near the location of the crime” added to the totality of circumstances supporting the detective’s reasonable suspicion … . People v Singleton, 2022 NY Slip Op 01893, Fourth Dept 3-18-22

Practice Point: The police mistakenly thought the man in a motel room (defendant) was a shooting suspect based upon vague and general allegations made by an informant. When he left the motel room, the defendant’s taxi was stopped and he was subsequently charged with possession of a controlled substance. The People did not demonstrate the legality of the stop.

 

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CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition:

Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for a significant period of time,” and “plaintiffs have not submitted any evidence to prove . . . constructive notice.” Although [plaintiff] testified that the parking lot appeared wet, not icy, when viewed from her husband’s truck, she also stated that she saw the ice once she had fallen; further, the affidavit of a witness states that “[t]he ice in the parking lot that morning was clearly visible.” Thus, the record contains conflicting accounts as to the visibility of the ice. “When considering a summary judgment motion, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations” … . Applying this standard, we find a triable issue of fact as to constructive notice. Carpenter v Nigro Cos., Inc., 2022 NY Slip Op 01857, Third Dept 3-17-22

Practice Point: Where there is conflicting evidence of constructive notice of a dangerous condition, here whether the ice which caused plaintiff’s slip and fall was visible, summary judgment is not appropriate.

 

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A COMPUTER PRINTOUT FROM THE NYS DEPARTMENT OF STATE WEBSITE PURPORTING TO SHOW THE LOCATION OF DEFENDANT’S PRINCIPAL PLACE OF BUSINESS FOR VENUE PURPOSES WAS NOT ADMISSIBLE AS A BUSINESS RECORD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s submission of a computer printout from the NYS Department of State website was insufficient to prove defendant’s principal place of business was in Kings County. Defendant had submitted its certificate of incorporation designating Richmond County as its principal place of business. Therefore plaintiff did not demonstrate the proper venue for this traffic accident case was Kings County. Plaintiff lived in New Jersey and the accident occurred in Ulster County:

… [T]he plaintiff failed to establish that the defendant’s certificate of incorporation had been amended to designate a principal office located in Kings County … or that the venue selected was otherwise proper. Contrary to the Supreme Court’s conclusion, a computer printout from the website of the New York State Department of State, Division of Corporations, submitted by the plaintiff, did not conclusively establish that Kings County is a proper venue for this action. The printout was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record … . Faulkner v Best Trails & Travel Corp., 2022 NY Slip Op 01770, Second Dept 3-16-22

Practice Point: Here a printout from the NYS Department of State purporting to show the location of defendant’s principal place of business was not admissible in this dispute over proper venue. The printout was not certified or authenticated and was not supported by a factual foundation sufficient for admissibility as a business record.

 

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ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that fact that the infant plaintiff, who was four at the time of her slip and fall, could not identify the cause of her fall did not require summary judgment in defendant’s favor. The cause of the fall may be established  by circumstantial evidence:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” … . However, “‘[t]hat does not mean that a plaintiff must have personal knowledge of the cause of his or her fall'” … . A determination “that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury” … . …

… [T]he plaintiffs submitted, among other things, the affidavit of the mother of the infant plaintiff who averred that she observed the infant plaintiff fall and that the fall was caused by a defective condition of a sidewalk in the park … . The mother also identified the location of the alleged defective sidewalk in a photograph that was included in the submission of both the plaintiffs and the … defendants … . In support of their respective motions, the … defendants had also submitted, inter alia, transcripts of the deposition testimony of the infant plaintiff, who testified, among other things, that her mother had seen her fall, and of her father, who averred that, at the time of the incident, he ran over to his daughter immediately after her fall and that, at that time, her body was partly on the sidewalk at issue. E. F. v City of New York, 2022 NY Slip Op 01769, Second Dept 3-16-22

Practice Point: Although the infant plaintiff could not identify the cause of her slip and fall, which is usually a fatal evidentiary problem, mother, father and defendants provided circumstantial evidence which raised a question of fact about an identified sidewalk defect as the cause of the fall.

 

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THE AFFIDAVITS SUBMITTED BY THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavits submitted by the plaintiff bank to demonstrate compliance with the notice requirements of RPAPL 1304 were insufficient:

… [N]either counsel in her affirmation, nor a contract management coordinator for the plaintiff’s loan servicer in an affidavit submitted in support of the motion, averred that they had personal knowledge of the mailing, or that the mailing was sent by both certified mail and first-class mail. Moreover, neither counsel nor the loan servicer’s representative described any standard office procedure designed to ensure that the notices were mailed, and no domestic return receipts for the mailings were submitted in support of the motion … . Deutsche Bank Natl. Trust Co. v LoPresti, 2022 NY Slip Op 01767, Second Dept 3-16-22

​Practice Point: Proof of compliance with the notice requirements of RPAPL 1304 failed in this foreclosure action.

 

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THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE (1) STANDING TO FORECLOSE THE REVERSE MORTGAGE, (2) DEFAULT AND (3) NOTICE WAS NOT ACCOMPANIED BY THE RELEVANT BUSINESS RECORDS, RENDERING THE AFFIDAVIT HEARSAY (FIRST DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s summary judgment motion in this reverse mortgage foreclosure proceeding should not have been granted.  The affidavit submitted to prove standing, default and notice was not accompanied by the relevant business records, rendering the affidavit inadmissible hearsay:

CIT Bank [plaintiff] submitted an affidavit of its assistant secretary, Elizabeth Birk, who, upon review of the business records maintained by CIT Bank, averred that CIT Bank was the “holder of the instrument of indebtedness at the time this action was commenced,” the borrower was “in default,” the “mortgage debt remains unpaid,” and a default notice “was thereafter duly sent.” However, since Birk failed to attach or otherwise incorporate any of CIT Bank’s business records to her affidavit, her assertions regarding the contents of such business records constituted inadmissible hearsay … . CIT Bank, N.A. v Fernandez, 2022 NY Slip Op 01764, Second Dept 3-16-22

Similar issue (no business records attached to the bank’s affidavit demonstrating defendant’s default) and result in JPMorgan Chase Bank, Natl. Assn. v Newton, 2022 NY Slip Op 01777, Second Dept 3-16-22

Practice Point: An affidavit submitted in support of summary judgment which purports to demonstrate what business records say, but which is not accompanied by those business records, in inadmissible hearsay.

 

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THE PLAINTIFF’S COMPLAINT IN THIS FORECLOSURE ACTION DID NOT INCLUDE ALLEGATIONS OF COMPLIANCE WITH RPAPL 1306, WHICH IS A CONDITION PRECEDENT TO SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not include in its complaint in this foreclosure action the allegation it had complied with RPAPL 1306, which is a condition precedent to suit:

RPAPL 1304(1) provides that, “with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “RPAPL 1306 provides, in . . . part, that within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304(1), every lender or assignee ‘shall file’ certain information with the superintendent of financial services, including ‘at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage, and such other information as will enable the superintendent to ascertain the type of loan at issue'” … . RPAPL 1306(1) further provides that any complaint served in a foreclosure proceeding “shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section.”

Here … the complaint did not contain an allegation that the plaintiff complied with RPAPL 1306. Thus, a condition precedent to suit was not satisfied, and the plaintiff failed to establish its entitlement to summary judgment on the complaint … . USA Residential Props., LLC v Jongebloed, 2022 NY Slip Op 01835, Second Dept 3-16-22

Practice Point: If the bank does not allege in its foreclosure complaint compliance with the requirements of RPAPL 1306, it has not satisfied a condition precedent to suit.

 

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THE AFFIDAVIT FROM THE LOAN SERVICER PURPORTING TO DEMONSTRATE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION DID NOT AVER THAT THE AFFIANT HAD THE AUTHORITY TO ACT FOR THE PLAINTIFF BANK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ default was not demonstrate by the complaint, which was not verified, or by the affidavit from the loan servicer, which did not aver that the affiant had the authority to act on behalf of the plaintiff bank in this foreclosure proceeding:

… Supreme Court erred in granting that branch of the plaintiff’s motion which was for leave to enter a default judgment and order of reference. “Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit ‘made by the party'” …  Here, the plaintiff submitted an affidavit executed by a contract management coordinator for the plaintiff’s purported loan servicer. However, there is no evidence in the record demonstrating that the affiant had the authority to act on behalf of the plaintiff … . U.S. Bank, N.A. v Stiene, 2022 NY Slip Op 01833, Second Dept 3-16-22

​Practice Point: Here, in this foreclosure action, the affidavit from the loan servicer which purported to demonstrate defendants’ default did not demonstrate the affiant had the authority to act on behalf of the bank.

 

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