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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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THE EXPERT AFFIDAVITS SUBMITTED ON BEHALF OF THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS OF NEGLIGENCE; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert affidavits in this medical malpractice action did not address all the allegations of negligence and were otherwise deficient. Therefore defendants’ motions for summary judgment should not have been granted:

The Koyfman defendants’ expert failed to address specific allegations of negligence asserted against the Koyfman defendants … , failed to address conflicting evidence in the record … , and failed to eliminate issues of fact as to the cause of the decedent’s injuries…. . …

… [Defendant] ORMC’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that Solomon did not depart from good and accepted medical practice in rendering treatment to the decedent and did not proximately cause her injuries … .. Moreover, ORMC’s expert failed to address specific allegations of negligence asserted against [defendant] Solomon … .Martinez v Orange Regional Med. Ctr., 2022 NY Slip Op 01780, Second Dept 3-16-22

Practice Point: At the summary judgment stage, medical malpractice actions are determined by the expert affidavits. If a party’s expert does not address all the allegations of negligence, that party’s motion for summary judgment will be denied without the need to even consider the opposing papers.

 

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THE JURY COULD HAVE FOUND PLAINTIFF BUS PASSENGER’S INJURIES WERE CAUSED BY THE NORMAL JERKS AND JOLTS OF BUS TRAVEL AND NOT BY ANY NEGLIGENCE ON DEFENDANTS’ PART; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-passenger-injury case should not have been granted. The jury could have found plaintiff was injured by the normal “jerks and jolts” of bus travel without any negligence on defendants’ part:

… [G]iving due deference to the jury’s credibility findings … , it could have determined, based upon a fair interpretation of the evidence introduced at trial, including the testimony of the bus driver and a surveillance video, that the movement of the bus as it drove over the speed bump was one of the sort of “jerks and jolts commonly experienced in city bus travel” and not attributable to the negligence of the defendant … . Jones v Westchester County, 2022 NY Slip Op 01774, Second Dept 3-16-22

Practice Point: Here the testimony of the bus driver and the surveillance video allowed the jury to determine plaintiff bus-passenger’s injuries were caused by normal movements of the bus and not by the driver’s negligence. Therefore the plaintiff’s motion to set aside the defense verdict should not have been granted.

 

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AN ENTRY IN A HOSPITAL RECORD INDICATING PLAINTIFF FELL DOWN A FEW STAIRS WAS NOT GERMANE TO TREATMENT OR DIAGNOSIS AND WAS NOT AN ADMISSION BECAUSE THE SOURCE OF THE ENTRY WAS UNKNOWN; NEW TRIAL ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined an entry in the plaintiff’s medical records indicating she fell down a few stairs was inadmissible. Plaintiff alleged she fell through a broken step. The entry in the hospital record was not germane to diagnosis or treatment and the source of the entry could not be ascertained:

… Supreme Court should have precluded the admission into evidence of an entry in a medical record from … the Brookdale medical record … that indicated that the plaintiff sustained a “mechanical fall down ‘a few’ stairs.” An entry in a medical record that is not germane to diagnosis or treatment but is inconsistent with a position taken by a party at trial is admissible as an admission by that party only when there is evidence connecting the party to the entry … .. “[W]here the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … .

Here, the Brookdale medical record was not germane to the plaintiff’s diagnosis or treatment, and thus was not admissible on that basis … .. Moreover, there was no showing that the plaintiff was the source of the information in that record and so it was not admissible as an admission by the plaintiff … . Fraser v 147 Rockaway Pkw, LLC, 2022 NY Slip Op 01772, Second Dept 3-16-22

Practice Point: An entry in a hospital record which is not germane to treatment or diagnosis is not admissible. An entry in a hospital record which is inconsistent with a plaintiff’s position at trial is admissible as an “admission” only if it is clear plaintiff was the source of the entry. If, as it was here, the source of the entry is unknown, it is inadmissible.

 

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ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT).

The First Department determined the motion to compel plaintiff to supplement his interrogatories in this products liability case was properly denied. Plaintiff alleged the escalator he was working on started up without warning severely injured his leg. The fact that plaintiff can not identify the cause of the unexpected start-up did not require supplementing his interrogatories as he can so state “under oath:”

“It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect” … . In the absence of evidence identifying a specific defect “a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to [the] defendants” … . If a “plaintiff is unable to prove both elements, ‘a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw'” …

In his interrogatory responses, plaintiff identified several alleged design defects, including the design of the pit, that contributed to his injury. However, he did not identify a cause for the unexpected start up of the escalator. … Presently, plaintiff asserts that he cannot pinpoint the defective component that allowed the escalator’s machinery to begin moving without warning. In an instance where plaintiff “presently lacks the knowledge” to specifically identify the nature of the defect, plaintiff can testify to that “under oath” … . … [I]f he acquires the pertinent information he would be under an obligation to promptly supplement his answers to the interrogatories at issue … . Berkovich v Judlau Contr., Inc., 2022 NY Slip Op 01733, First Dept 3-15-22

Practice Point: Products liability actions can be proven by circumstantial evidence. If a plaintiff does not know the cause of a product malfunction (here, an escalator which allegedly started running unexpectedly) at the discovery stage, the plaintiff can testify to that fact under oath.

 

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