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AT TRIAL IN THIS FORECLOSURE ACTION, PLAINTFF FAILED TO PROVE STANDING TO FORECLOSE AND FAILED TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court and dismissing the foreclosure complaint, determined the plaintiff did not demonstrate standing to foreclose and did not demonstrate compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304:

… [S]ince the witness on the issue of standing proffered by the plaintiff at the trial testified, among other things, that the purported allonges that were with the original note were not stapled to the note, and further testified that he did not know when the allonges were executed or attached to the note, the plaintiff failed to establish its standing as the holder of the original note at the time of the commencement of the action. * * *

… [P]laintiff’s witness on the issue of notice did not have knowledge of the mailing practices of the entity which, according to the plaintiff, sent the requisite 30-day and 90-day notices … . Moreover, the business records that were submitted in evidence failed to show that the requisite certified and first-class mailings of the RPAPL 1304 notices or the default notices were actually made to the defendants or that the default notices were actually delivered to their notice address. Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 and failed to show that the default notices were sent in accordance with the terms of the mortgage agreement … . Onewest Bank FSB v Thomas, 2025 NY Slip Op 05692, Second Dept 10-15-25

Practice Point: If a foreclosure action goes to trial and standing is contested, the bank must prove it has standing to foreclose. In addition, the bank must prove compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304. Here the failure of proof on those issues resulted in dismissal of the complaint.​

 

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IN THIS FORECLOSURE ACTION, FAILURE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE REQUIREMENTS OF RPAPL 1304 RESULTED IN DISMISSAL OF THE COMPLAINT AFTER TRIAL (SECOND DEPT).

The Second Department, determined plaintiff in this foreclosure action did not strictly comply with the provisions of RPAPL 1304, requiring dismissal of the complaint after trial:

… [T]he plaintiff failed to demonstrate its strict compliance with RPAPL 1304. “‘Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action'” … . When this action was commenced in 2015, RPAPL 1304(1) required that the notice sent to borrowers contain the following language: “As of . . . , your home loan is . . . days in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home. You can cure this default by making the payment of . . . dollars by . . .” … .

Here, at the nonjury trial, the plaintiff submitted the notice sent to the defendant, which omitted the cure date as required by the statute. Thus, the plaintiff failed to establish its compliance with RPAPL 1304 … . Christiana Trust v Larmond, 2025 NY Slip Op 05664, Second Dept 10-15-25

Practice Point: Here the notice of foreclosure presented as evidence at trial did not comply with RPAPL 1304, requiring dismissal of the complaint.

 

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CONTRARY TO FAMILY COURT’S RULING, THE EVIDENCE SUPPORTED PARENTAL NEGLECT FINDINGS WITH RESPECT TO ALL THE CHILDREN FOR FAILURE TO PROVIDE MEDICAL AND DENTAL TREATMENT AND FAILURE TO ENSURE SCHOOL ATTENDANCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence supported finding the parents neglected the children by failing to provide medical and dental care and failing to ensure school attendance:

A neglected child is defined, in relevant part, as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [their] parent or other person legally responsible for [their] care to exercise a minimum degree of care . . . in supplying the child with adequate . . . education . . . , or medical[ or] dental . . . care, though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). “The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … .

… [T]he evidence of respondents’ ” ‘failure to follow through with necessary treatment for [Rocky M.’s] serious medical condition support[s] [a] finding of medical neglect” against them … . …[R]espondents’ failure to take Jemma M. to medical appointments for most of the first year of her life, particularly in light of her prematurity, condition and weight at birth, and subsequent developmental delays, caused impairment of her physical and emotional condition sufficient to support a finding of medical neglect with respect to her … . … [T]he evidence … , including medical records, establishes that respondents were financially able or had other reasonable means to provide adequate medical care … . The evidence further establishes that respondents neglected Cynthia M., Gwen M., Emmitt C. and Rocky M. by failing to provide adequate dental care … . … [P]etitioner presented unrebutted evidence of excessive school absences for Cynthia M., Gwen M., James M., and Emmitt C., which is sufficient to establish respondents’ educational neglect of those children … . Finally, we conclude that the evidence of neglect with respect to the aforementioned children “demonstrates such an impaired level of . . . judgment as to create a substantial risk of harm for any child in [respondents’] care,” thus warranting a finding of derivative neglect with respect to Nova M. and Trenton M. Matter of Cynthia M., 2025 NY Slip Op 05621, Fourth Dept 10-10-25

Practice Point: The parents’ failure to provide the children with medical and dental care, and the failure to ensure school attendance warranted neglect and derivative neglect findings with respect to all the children, criteria explained.

 

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ALTHOUGH PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUGHT HER HEEL AND CAUSED HER TO FALL, THE CIRCUMSTANTIAL EVIDENCE THAT A MIS-LEVELED CONCRETE SLAB CAUSED THE FALL COULD ALLOW THE JURY TO DETERMINE THE CAUSE WITHOUT RESORT TO SPECULATION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that, defendant’s motion for summary judgment in this slip and fall case should have been denied. Plaintiff testified “something caught her heel” when she was walking backwards from a gravel driveway to the garage and she fell onto concrete in the garage. Plaintiff could not identify the cause of her fall, but the circumstantial evidence indicated her heel caught on the mis-leveled concrete slab:

​… [W]e conclude that defendant failed to establish as a matter of law that the cause of plaintiff’s fall was speculative … . ” ‘Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value . . . , a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[ ] show[s] facts and conditions from which the negligence of the defendant[ ] and the causation of the accident by that negligence may be reasonably inferred’ ” … .

Although plaintiff testified that she did not know what caught her heel and caused the fall, she also stated that she fell in the immediate vicinity of the entry to the garage from the gravel driveway and landed inside the garage. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party … , we conclude that the testimony and the allegations in the bill of particulars regarding the mis-leveled concrete slab “render[ed] any other potential cause of her fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” … . Withers v Roblee, 2025 NY Slip Op 05620, Fourth Dept 10-10-25

Practice Point: Here the plaintiff could not say precisely what “caught her heel” and caused her to fall, but the circumstantial evidence was such that a jury could determine the cause without resort to speculation. Defendant’s motion for summary judgment should have been denied.

 

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THE DEFENDANT SAID “HE DIDN’T WANT TO TALK ABOUT THAT …” AND THE POLICE STOPPED QUESTIONING HIM; AN HOUR AN A HALF LATER THE POLICE RESUMED QUESTIONING WITHOUT RE-READING THE MIRANDA RIGHTS; THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the statements made by defendant after he invoked his right to remain silent should have suppressed. The questioning stopped after defendant said “he didn’t want to talk about that …”. The questioning resumed an hour and a half later without a re-reading of defendant’s Miranda rights:

… [A]fter the police told defendant that they considered him a suspect in the underlying shooting and asked him “for his side of the story,” defendant continually stated that “he didn’t want to talk about that and [that] he’d rather take his chances.” We conclude that defendant thereby unequivocally invoked his right to remain silent … inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Indeed, the actions of the police in response to defendant’s statement demonstrated that they understood his statement to be an unequivocal invocation of his right to remain silent—i.e., they promptly ceased their questioning of defendant and left the interrogation room for a prolonged period of time … . Defendant’s responses to a police officer when the officer resumed the interrogation—which occurred about an hour and a half after the prior questioning ceased—did not negate defendant’s prior unequivocal invocation of his right to remain silent because the police officer failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Surles, 2025 NY Slip Op 05603, Fourth Dept 10-10-25

Practice Point: Here the police stopped questioning defendant when he said “he didn’t want to talk about that …”. An hour and half later the police resumed questioning without re-reading the Miranda rights. Those statement should have been suppressed.

 

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IN THIS CHILD VICTIMS ACT CASE BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN THE 70’S, EVIDENCE SUBMITTED BY PLAINTIFF AND DEFENDANTS RAISED QUESTIONS OF FACT WHICH SUPPORTED THE NEGLIGENT SUPERVISION, TRAINING AND HIRING AND RETENTION CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this Child Victims Act case, determined the negligent supervision, negligent training, and negligent hiring and retention causes of action against the school district, based on allegations of sexual abuse of plaintiff by a music teacher in the 70’s, should not have been dismissed. The evidence presented by the plaintiff and defendants included the observed behavior of the music teacher by another teacher, the dismissal of the music teacher from other schools, the conflicting information about arrests in the teacher’s employment applications, the suspicions of other teachers and the failure to report those suspicions:

… [P]laintiff submitted an affidavit wherein he averred that on two occasions the music teacher entered the boys’ locker room while plaintiff and his classmates were changing and that on each occasion the gym teacher instructed the music teacher to leave. Although the gym teacher denied observing the music teacher in the boys’ locker room during his deposition, plaintiff submitted an affidavit that the gym teacher executed in an unrelated case wherein he averred that he had “heard rumors from many students” that the music teacher had a sexual interest in the male students at the school and that he was “suspicious that [the music teacher] may have had inappropriate relationships with students.” The affidavit reflects that the gym teacher was “vigilant” and “kept an eye on” the music teacher—meeting weekly with another coach to “see if the other had witnessed any inappropriate behavior” by the music teacher—but nonetheless permitted the music teacher to transport students to and from games and swim meets.

* * * [[P]laintiff submitted the music teacher’s testimony, wherein he testified that he had “always” had students visit him at his home and that other teachers were aware that students would visit him at his home, where the abuse of plaintiff is, in part, alleged to have occurred … . …

Plaintiff also submitted an expert affidavit asserting that defendants failed to appropriately train and supervise other teachers and staff to report their knowledge of inappropriate behavior. * * *

… [D]efendants submitted the music teacher’s employment applications, wherein he submitted contradictory responses about whether he had been arrested; a reference from the principal of a junior high school where the music teacher had taught, who stated that the music teacher had been “dismissed or denied tenure” and “had a tendency to more or less pal with his seventh grade male students”; and a reference completed by a school counselor employed by a different district, who stated that the music teacher had been “dismissed or denied tenure” and that she would not employ him as a teacher in her school system. Harper v Buffalo City Sch. Dist., 2025 NY Slip Op 05595, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into the nature of the proof which will raise questions of fact in a Child Victims Act case against a school district alleging negligent supervision, training, hiring and retention.

 

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THE ADDITIONAL FIVE-YEAR CONSECUTIVE SENTENCES PURSUANT TO PENAL LAW 265.09 (2) DID NOT APPLY TO FIVE COUNTS OF THE INDICTMENT; THE APPEAL OF AN ILLEGAL SENTENCE DOES NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department determined several of the additional consecutive five-year sentences pursuant to Penal Law 265.09( 2) were illegal. The court noted that preservation is not required for the appeal of an illegal sentence:

… [Penal Law 265.09(2)] provides in relevant part that, “[n]otwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in [Penal Law § 265.09 (1)], the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged, in furtherance of the commission of such crime” … . …

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 2… and robbery in the first degree under count 5 … . Given that the use or display of a firearm is an element of each of those crimes and “the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree” … , neither of those crimes may serve as “the underlying class B violent felony offense” upon which the court could impose an additional consecutive sentence of five years … .

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 3… . * * * Defendant’s conviction under Penal Law § 265.09 (1) (a) “did not involve the display of a loaded, operable weapon” … , and the victim—the only person other than defendant who was present in the room where the shooting occurred—had no recollection of defendant’s entry into the apartment or of the events that transpired during the shooting that caused his physical injuries … . People v Clea, 2025 NY Slip Op 05590, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into when the five-year consecutive-sentence enhancement for display of a fireman is not allowed by Penal Law 265.09 (2).

 

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THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the drug-possession indictment, determined the police officer’s search of defendant’s pocket while he was unconscious was not a valid search incident to arrest a was not justified under the Mental Hygiene Law. The police entered the apartment with the tenant’s permission to search for a person for whom they had an arrest warrant. The tenant told the police the defendant had the same first name as the name on the warrant but that defendant was not the person they were looking for. Defendant was sitting at the kitchen table either unconscious or asleep. When the police officer couldn’t wake the defendant up, the officer searched his pockets and found cocaine:

The officers called an ambulance for defendant, but when the ambulance arrived, the medical personnel were able to wake defendant and determined that he did not need medical care. During his testimony at the suppression hearing, the officer asserted that Mental Hygiene Law § 22.09 permitted him to search defendant inasmuch as he was planning to call an ambulance to transport defendant. The suppression court determined that the officer’s search of defendant’s person was justified by Mental Hygiene Law § 22.09 and that the search was analogous to a search incident to arrest.

… The People correctly concede that the officer did not believe that defendant had committed a crime before he searched defendant’s pockets, and thus the search was not conducted incident to a lawful arrest … . … [W]e cannot conclude that the police officer was acting pursuant to Mental Hygiene Law § 22.09 because, contrary to the People’s assertion, there was insufficient evidence that defendant was in danger of harming himself or others … . People v Ruise, 2025 NY Slip Op 05589, Fourth Dept 10-10-25

Practice Point: For a warrantless search of a person to be justified under the Mental Hygiene Law there must be evidence the defendant is in danger of harming himself or others.

 

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PLAINTIFF ALLEGED A DEFECTIVELY MAINTAINED AND/OR INSTALLED TRAFFIC SIGNAL ALLOWED A SIGNAL HEAD IN EACH DIRECTION TO SHOW A GREEN LIGHT, THEREBY CAUSING THE INTERSECTION COLLISION; ALTHOUGH THE TOWN DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TRAFFIC SIGNAL, THE PLAINTIFF RAISED QUESTIONS OF FACT ON THE “FAILURE TO MAINTAIN THE INTERSECTION IN A SAFE CONDITION” AND “CREATION OF A DANGEROUS CONDITION” CAUSES OF ACTION, AND THE NEGLIGENCE CAUSE OF ACTION WAS SUFFICIENTLY ALLEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and reinstating the complaint, determined the complaint and bill of particulars sufficiently alleged negligence and questions of fact were raised about whether the county failed to properly maintain a traffic signal and created a dangerous condition. The plaintiff alleged a pipe holding the traffic signal broke allowing it to rotate 90 degrees such that at least one of the signal heads in each direction showed a green light, causing the intersection collision. The fact that the county demonstrated it did not have notice of the defective traffic signal did not affect the viability of the “failure to maintain the intersection in a safe condition” and the “creation of a dangerous condition” causes of action:

“A municipality has a duty to maintain its streets in a reasonably safe condition” … . “[T]he municipality breaches such duty if it permits a dangerous or potentially dangerous condition to exist and cause injury” … . Here, to meet its burden on that part of the motion seeking summary judgment, defendant was required to “demonstrate that it maintained the intersection in a reasonably safe condition and that it neither created the alleged defective condition nor had actual or constructive notice of same” … .

… [W]e conclude that plaintiff raised triable issues of fact by submitting the affidavit of his expert … . We also agree with plaintiff that questions of fact exist with respect to whether the doctrine of res ipsa loquitur applies here … . Duncan v Town of Greece, 2025 NY Slip Op 05588, Fourth Dept 10-10-25

Practice Point: The municipality’s lack of notice of a dangerous condition, here an allegedly defective traffic signal, does not affect the viability of causes of action alleging the failure to maintain the intersection in a safe condition and/or the municipality’s creation of the dangerous condition.​

 

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CONFLICTING EVIDENCE OF THE CAUSES OF CLAIMANT’S HEARING LOSS DID NOT SUPPORT THE MEDICAL EXPERTS’ CONCLUSIONS THAT THE LOSS WAS ATTRIBUTABLE TO THE OPERATION OF HEAVY MACHINERY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the conflicting evidence of the causes of claimant’s hearing loss did not support the experts’ conclusions that the hearing loss was “likely” caused by exposure to noise from the operation of heavy equipment:

… [T]he medical opinion evidence on the issue of causation need not be expressed with certainty or in absolute terms … , and we acknowledge that the Board is vested with the exclusive authority to weigh conflicting medical opinions and to evaluate the medical evidence before it … . That said, the medical opinions upon which the Board bases its finding of a causal relationship nonetheless must be supported by a rational basis … . Here, each of the foregoing physicians indeed expressed that it was “likely or “very obvious” that claimant’s hearing loss was attributable to work-related noise exposure. However, given the other documented sources of noise exposure … , the conflicting medical histories provided by claimant and, most notably, the testimony of the carrier’s consultant, who made clear that the results of claimant’s audiograms were decidedly inconsistent with noise-related hearing loss, we are unable to conclude that these generalized statements of causation are otherwise supported by a rational basis in the record as a whole. Under these circumstances, the Board’s finding that claimant sustained a work-related binaural hearing loss is not supported by substantial evidence … . Matter of Spada v Keeler Constr. Co., 2025 NY Slip Op 05553, Third Dept 10-9-25

Practice Point: In the context of a hearing loss alleged to have been caused by prolonged exposure to noise from heavy machinery, the medical experts’ conclusions must be supported by evidence in the record. Here the experts’ conclusions that the hearing loss was attributable to the operation of heavy machinery were weakened by conflicting causation-evidence in the record and the finding of causation was reversed.

 

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