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PETITIONER-INMATE WAS DENIED DUE PROCEES WHEN HE WAS NOT ALLOWED TO VIEW A VIDEO OF THE INCIDENT WHICH RESULTED IN THE MISBEHAVIOR CHARGE; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the petitioner-inmate’s misbehavior determination, held that the petitioner was denied due process by not being given the opportunity to see the video of the incident:

“[A]n [incarcerated individual] ‘should be allowed to call witnesses and present documentary evidence in his [or her] defense when permitting him [or her] to do so will not be unduly hazardous to institutional safety or correctional goals'” … . The videotaped incident occurred while petitioner was incarcerated at a different facility. The Hearing Officer informed petitioner that, due to the format of the video, it could not be played in the hearing room and could only be played on equipment located in a secure area of the facility from which petitioner was barred entry. The Hearing Officer stated that he had viewed the video in the secure area, and he described what he believed the video depicted. Petitioner objected, arguing that he was being prevented from providing exculpatory testimony as to what occurred in the video. The Hearing Officer denied the objection, stating that ‘the video speaks for itself,’ and the record reflects that he relied, in part, on the video in reaching the determination of guilt. Contrary to respondent’s contention, the explanation that the only video equipment capable of playing the video was in a secure area, without any apparent attempt to either move the equipment or find other equipment capable of playing the video for petitioner, did not articulate institutional safety or correctional goals sufficient to justify denying petitioner’s right to reply to evidence against him … .. Similarly, the fact that petitioner may have seen the video at his former facility during a prior hearing on these charges before a different Hearing Officer, a hearing that resulted in a determination that was administratively reversed, does not excuse the denial of petitioner’s right to view the video during the new hearing and offer exculpatory testimony as to its contents … .

As to the remedy, we conclude that a new hearing, not expungement, is appropriate. Matter of Proctor v Annucci, 2022 NY Slip Op 03298, Third Dept 5-18-22

Practice Point: Prison inmates charged with misbehavior have due process rights. Here the petitioner-inmate was entitled to see the video which allegedly depicted the charged misbehavior. The determination was annulled and a new hearing ordered.

 

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HERE SCREENSHOTS OF TEXT MESSAGES WHICH HAD BEEN DELETED FROM THE VICTIM’S PHONE WERE SUFFICIENTLY AUTHENTICATED TO BE ADMISSIBLE, EVEN IF THE BEST EVIDENCE RULE APPLIED; THE MESSAGES OF A SEXUAL NATURE ALLEGEDLY WERE SENT BY THE DEFENDANT, A VOLLEY BALL COACH, TO THE VICTIM, A 15-YEAR-OLD PLAYER ON THE TEAM (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined the trial court did not abuse its discretion by admitting in evidence screen shots of text messages of a sexual nature allegedly sent by the defendant, a high-school volley ball coach, to the 15-year-old victim, a player on the team. The victim had deleted the messages, but her boyfriend had taken screenshots of some of the messages and those screenshots were allowed in evidence. On appeal the Second Department reversed the conviction on the ground that the screenshots had not been properly authenticated:

“[T]echnologically generated documentation [is] ordinarily admissible under standard evidentiary rubrics” and “this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated” … . This Court recently held that for digital photographs, like traditional photographs, “the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted” … . We reiterated that “[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer” … . which would be the boyfriend here. Rather, “any person having the requisite knowledge of the facts may verify” the photograph “or an expert may testify that the photograph has not been altered” … .

Here, the testimony of the victim—a participant in and witness to the conversations with defendant—sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant’s phone. The boyfriend also identified the screenshots as the same ones he took from the victim’s phone on November 7. Telephone records of the call detail information for defendant’s subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Moreover, even if we were to credit defendant’s argument that the best evidence rule applies in this context, the court did not abuse its discretion in admitting the screenshots. People v Rodriguez, 2022 NY Slip Op 03307, CtApp 5-19-22

Practice Point: Text messages of a sexual nature were allegedly sent by the defendant, a volley ball coach, to a 15-year-old player on the team. The original messages were deleted, but the victim’s boyfriend had taken screenshots of some of the messages. The screenshots were deemed authenticated and admitted by the trial court. The Second Department reversed, applying the best evidence rule. The Court of Appeals reversed the Second Department, finding that, even if the best evidence rule applied, the trial court did not abuse its discretion by finding the screenshots had been sufficiently authenticated.

 

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IN THIS FORECLOSURE ACTION, THE RPAPL 1304 NOTICE DID NOT INCLUDE THE REQUIRED INFORMATION AND THE PROOF OF MAILING OF THE NOTICE WAS DEFICIENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined proof of mailing of the RPAPL 1304 notice and failure to comply with the content-requirements for the RPAPL 1304 notice in this foreclosure action warranted denial of the plaintiff’s motion for summary judgment:

The respondent failed to establish the plaintiff’s strict compliance with RPAPL 1304. The respondent submitted an affidavit of Alfreda Johnson, a “Foreclosure Specialist” of Fay Servicing, LLC (hereinafter Fay), the plaintiff’s servicer. Johnson did not have personal knowledge of the purported mailing … . Furthermore, while Johnson averred that she was familiar with Fay’s mailing practices and procedures, the record indicates that the notices were not mailed by Fay. The record indicates that the notices were mailed by an entity known as “Seterus” … . Johnson does not address this fact at all, let alone demonstrate that she was familiar with Seterus’s mailing practices and procedures. Thus, the respondent failed to establish that the 90-day notices were properly mailed in strict compliance with RPAPL 1304 … .

Moreover, the content of the 90-day notices did not strictly comply with RPAPL 1304 … . Here, the 90-day notices omitted information that was required by RPAPL 1304 … . Prof-2014-S2 Legal Tit. Trust II v DeMarco, 2022 NY Slip Op 03263, Second Dept 5-18-22

Practice Point: Here, in this foreclosure action, not only was proof of mailing the RPAPL 1304 notice insufficient, but the notice did not include all the required information.

 

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ALTHOUGH A FORECLOSURE ACTION USUALLY ACCELERATES THE DEBT AND STARTS THE STATUTE OF LIMITATIONS CLOCK, HERE THE DEFENDANTS-BORROWERS DID NOT DEMONSTRATE THAT THE 2009 FORECLOSURE ACTION SOUGHT THE ENTIRE AMOUNT DUE (THE 2009 COMPLAINT WAS NOT SUBMITTED); THEREFORE THE DEFENDANTS DID NOT DEMONSTRATE THE INSTANT ACTION IS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants-borrowers in this foreclosure action did not demonstrate the debt was accelerated by the 2009 foreclosure action. Therefore the complaint in the instant action should not have been dismissed as untimely:

… [T]he defendants failed to demonstrate that the debt was validly accelerated by the commencement of the 2009 action. In support of their respective motions, the defendants submitted only the summons with notice from the 2009 action, which did contain a statement that BAC sought “payment of the full balance due,” and a printout of the WebCivil Supreme-Case Detail related to the instant action … . Since the defendants did not submit the complaint or the notice of pendency filed in the 2009 action, it cannot be determined whether those documents elected to accelerate the mortgage loan … . GSR Mtge. Loan Trust v Epstein, 2022 NY Slip Op 03232, Second Dept 5-18-22

Practice Point: To demonstrate that a prior foreclosure action accelerated the debt and thereby started the statute of limitations clock, proof that the prior action called for payment of the entire debt must be submitted. Here the defendants-borrowers did not submit the 2009 foreclosure complaint and therefore did not prove the debt was accelerated by the 2009 foreclosure action.

 

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THE BANK’S PROOF OF DEFENDANT’S DEFAULT, MAILING OF THE NOTICE OF DEFAULT, AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE IN THIS FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s proof of defendant’s default and mailing of the notice of default was insufficient in this foreclosure action:

… [T]he plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendant’s default and that it complied with the notice of default provisions in the mortgage. In support of its motion, the plaintiff submitted an affidavit of Sonja Manderville, who averred that, in her position as a contract management coordinator of … the plaintiff’s loan servicer, she has access to and is familiar with the business records related to the mortgage loan at issue. She averred that the records “were made at or near the time of the Transactions documented thereby by a person with knowledge of the Transactions . . . and are maintained in the regular and usual course of business.” However, Manderville failed to aver to familiarity with the record-keeping practices and procedures of the entity that generated the records or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business … .

… Manderville failed to identify the records upon which she relied, and the plaintiff failed to submit copies of the records themselves. …

… Manderville’s assertions regarding the purported mailing of the notice of default were insufficient to establish a mailing … .Manderville failed to allege familiarity with the mailing practices and procedures of the third party that allegedly sent the notice of default in 2009 … . Since the plaintiff failed to provide evidence 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 that the notice of default was sent in accordance with the terms of the mortgage … . Deutsche Bank Natl. Trust Co. Ams. v Banu, 2022 NY Slip Op 03231, Second Dept 5-18-22

Practice Point: In this foreclosure action, the affidavit submitted by the bank to demonstrate defendant’s default and the mailing of the notice of default was deficient and the relevant business records were not submitted. These “foundational-affidavit” problems and the failure to submit the records referenced in the foundational affidavit have required reversal on appeal in literally hundreds cases over the last five or more years.

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE “SEPARATE ENVELOPE” RULE AND THEREFORE DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action failed to demonstrate the 90-day notice required by RPAPL 1304 was sent to the defendant in a separate envelope:

RPAPL 1304(2) also provides, in relevant part, that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.”

The plaintiff failed to establish, prima facie, that it sent 90-day notices to the defendant “in a separate envelope from any other mailing or notice” … . Since the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, 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 dismissing his answer with affirmative defenses and for an order of reference, regardless of the sufficiency of the opposing papers … . Deutsche Bank Natl. Trust Co. v Bonal, 2022 NY Slip Op 03230, Second Dept 5-18-22

Practice Point: To warrant summary judgment in a foreclosure action, the bank must demonstrate that the RPAPL 1304 notice was sent to each borrower in a separate envelope which includes no other materials.

 

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THE PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE INTEREST CALCULATION WAS DONE USING THE METHOD REQUIRED BY THE NOTE AND THE RELEVANT BUSINESS RECORDS WERE NOT SUBMITTED; THE REFEREE’S 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. There was no evidence the interest calculation was done in the manner required by the note and the relevant business records were not submitted:

… Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale because the plaintiff failed to present evidence that the interest on the loan was calculated using the method set forth in the note, and the referee’s computations, including the amount due and owing and payments for taxes, insurance, and other advances, were premised upon unproduced business records … . Bank of N.Y. Mellon v Singh, 2022 NY Slip Op 03221, Second Dept 5-18-22

Practice Point: In a foreclosure action, the interest must be calculated using the method required by the note, and any relevant business records must be produced in order to warrant confirmation of the referee’s report.

 

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DESPITE THE APPARENT FAILURE TO PRESERVE A VIDEO OF A MEETING DURING WHICH PETITIONER ALLEGEDLY PLANNED A DEMONSTRATION AT THE PRISON, THE DETERMINATION FINDING PETITIONER GUILTY OF PLANNING THE DEMONSTRATION WAS CONFIRMED; THE DISSENT ARGUED PETITIONER WAS DEPRIVED OF DUE PROCESS BY THE FAILURE TO TURN OVER THE VIDEO, WHICH HAD BEEN REVIEWED BY THE OFFICER WHO PREPARED THE MISBEHAVIOR REPORT (THIRD DEPT).

The Third Department confirmed the determination finding petitioner-inmate guilty of urging others to participate in a demonstration at the prison. There was a video of the meeting where the demonstration was allegedly planned. An officer who witnessed the meeting and testified about it apparently viewed the video. Petitioner made timely requests for the video, but it was never provided. The dissent argued the failure to retain and provide the video of the alleged meeting required that the determination be annulled:

From the dissent:

The sergeant and the correction officer have described two distinctly different meetings, one involving 12 people, the other 30 to 40 … . This discrepancy heightens the relevance of the … video, as does the fact that the sergeant viewed the video and the Hearing Officer was uncertain whether that viewing occurred before or after the undefined retention period expired. Complicating matters, the Hearing Officer noted the three-week delay between the … meeting and issuance and service of the misbehavior report on petitioner.

… In a situation such as this, where there is an extended delay in issuing a misbehavior report and the author of that report has in fact reviewed a video, it is incumbent upon the correctional facility to preserve that evidence … . The failure to do so here compromised petitioner’s due process right to a fair evidentiary hearing … . That is particularly so in view of the sergeant’s affirmative testimony as to what ostensibly happened in the E-yard on May 29, 2020. It is further evident that the Hearing Officer should have, but failed to, inquire further as to the existence of the video or the circumstances of its deletion … Matter of Headley v Annucci, 2022 NY Slip Op 03166, Third Dept 5-12-22

Practice Point: Inmates subjected to disciplinary actions by prison authorities have due process rights. Here the dissent argued that the failure to preserve and provide a video of the meeting at which petitioner-inmate allegedly planned a prison demonstration deprived him of his due process rights. The dissenter would have annulled the determination on that ground.

 

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DEFENDANT PROPERTY OWNER DEMONSTRATED THAT THE STORM IN PROGRESS DOCTRINE APPLIED IN THIS SLIP AND FALL CASE (A PROPERTY OWNER WILL NOT BE LIABLE FOR A SNOW AND ICE CONDITION UNTIL A REASONABLE TIME AFTER THE PRECIPITATION HAS STOPPED); THE BURDEN THEN SHIFTED TO PLAINTIFF TO SHOW DEFENDANT’S EFFORT TO REMOVE SNOW HOURS BEFORE THE FALL CREATED THE DANGEROUS CONDITION; TO MEET THAT BURDEN AN EXPERT AFFIDAVIT SHOULD HAVE BEEN, BUT WAS NOT, SUBMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the property owner’s (Site A’s) motion for summary judgment in this ice and snow slip and fall case should have been granted. The evidence demonstrated it was still snowing at the time of plaintiff’s fall and plaintiff did not submit an expert affidavit demonstrating how defendant’s snow removal efforts exacerbated the condition:

Site A made a prima facie showing of entitlement to summary judgment based on the storm-in-progress doctrine, because the meteorological data, its expert meteorological affidavit, and plaintiff’s deposition testimony annexed to its moving papers establish that there was a storm in progress when the accident occurred … . …

Although the burden shifted to plaintiff to establish that Site A created the alleged condition or made it more hazardous by attempting to remove the precipitation from the driveway about five hours before he fell, plaintiff failed to meet that burden as he submitted no expert affidavit explaining how Site A, by not salting or sanding the area before the accident, could have created or exacerbated the naturally occurring ice condition … . Colon v Site A – Wash. Hgts., 2022 NY Slip Op 03173, First Dept 5-12-22

Practice Point: Here in this ice and snow slip and fall case, the defendant property owner presented prima facie proof that the storm-in-progress doctrine applied because it was snowing hours before plaintiff fell and was still snowing when plaintiff fell. The burden then shifted to the plaintiff to show that defendant’s snow removal efforts undertaken hours before the fall exacerbated the dangerous condition. Because plaintiff did not submit an expert affidavit on that issue, plaintiff’s burden of proof was not met.

 

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THE “ABANDONMENT” EVIDENCE WAS NOT SUFFICIENT; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner did not prove mother had abandoned her children. Mother’s parental rights should not have been terminated:

… [T]he petitioner failed to establish by clear and convincing evidence that the mother evinced an intent to forego her parental rights. The record demonstrates that, during the six-month abandonment period, the mother visited with the children on two occasions, saw the children on at least one additional occasion at a family gathering, purchased clothing for the children, spoke with the case worker on the phone multiple times, and objected to the goal for the children’s placement changing to a kinship adoption rather than returning the children to the mother. Under these circumstances, the Family Court should have denied the petitions on the merits, insofar as asserted against the mother … . We further note that the record contains testimony from a case worker that, during family visits subsequent to the filing of the petitions, the mother’s interactions with the children were “very positive.” “While a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent” … .  Matter of Grace E. W.-F. (Zanovia W.), 2022 NY Slip Op 03119, Second Dept 5-11-22

Practice Point: The petitioner did not present clear and convincing evidence that mother abandoned her children. The termination of parental rights petition should not have have been granted. Mother had visited the children, seen the children at a family gathering, purchased clothing for the children and frequently talked to the case worker.

 

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