You are here: / Evidence
, , ,

DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE BANK POSSESSED THE CORRECT VERSION OF THE NOTE, AND, THEREFORE, WHETHER THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action raised a question of fact whether the bank possessed the relevant note, and therefore had standing, when the action was commenced:

“Pursuant to article 3 of the Uniform Commercial Code, a note can be endorsed, or signed over, to a new owner” … . A note can also be endorsed in blank, naming no specific payee, which makes it a bearer instrument, so that any party that possesses it has the legal authority to enforce it (see UCC 3-202[1]; 3-204[2] …). …

The version of the note that contained the special endorsement by GreenPoint to GMAC …, which was submitted in the 2008 foreclosure action, was not consistent with the endorsement in blank by GreenPoint. If the note was specially endorsed to GMAC, it would subsequently had to have been specially endorsed to the plaintiff or endorsed in blank by GMAC in order for the plaintiff to enforce it (see UCC 3-202[1]; 3-204[1] … ). Thus, the defendants raised a triable issue of fact as to whether the plaintiff possessed the legal authority to enforce the note at the time this action was commenced … . U.S. Bank N.A. v Rozo-Castellanos, 2022 NY Slip Op 00457, Second Dept 1-26-22

 

, ,

THE COMPLAINANT’S IDENTIFICATION OF DEFENDANT FROM A SINGLE PHOTOGRAPH WAS UNDULY SUGGESTIVE; PROOF OF SERIOUS INJURY RE: THE ASSAULT CHARGE WAS LEGALLY INSUFFICIENT; ALTHOUGH THE LEGAL SUFFICIENCY ARGUMENT WAS NOT PRESERVED IT WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over an extensive partial dissent, determined: (1) the defendant was entitled to a new trial on the burglary charge because the identification procedure was unduly suggestive; and (2) the serious injury element of the assault charge was not supported by legally sufficient evidence:

… [A]lthough the burglary complainant’s identification of the Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . …

… [U]pon the exercise of our interest of justice jurisdiction (see CPL 470.05[2]), we conclude that the conviction of assault in the second degree is not supported by legally sufficient evidence that the detective sustained a “physical injury” within the meaning of Penal Law § 10.00(9). …

The record did not support a finding that the detective experienced substantial pain. At the time of his discharge from the hospital, the detective assessed his pain as a “3” and was advised to take Tylenol for pain. His “quality” of pain was characterized as “aching.” Furthermore, there was no evidence as to the duration of any pain. People v Wheeler, 2022 NY Slip Op 00442, Second Dept 1-26-22

 

, , ,

THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure actions:

Where, as here, the plaintiff’s standing has been placed in issue by the defendant’s answer, the plaintiff must prove its standing as part of its prima facie showing … . “[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action” … .

Here, 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 for an order of reference, as the plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . The affidavit of the plaintiff’s employee and the copy of the note attached thereto which were submitted in support of the plaintiff’s motion for summary judgment did not clarify whether the allonge was firmly affixed to the note … . Nationstar Mtge., LLC v Calomarde, 2022 NY Slip Op 00428, Second Dept 1-26-22

 

, ,

AN APPELLATE COURT CANNOT DETERMINE A SUPPRESSION MOTION BASED ON TRIAL EVIDENCE; THE TRIAL EVIDENCE REVEALED THE SEARCH OF DEFENDANT’S APARTMENT MAY HAVE BEEN UNLAWFUL; BASED UPON THE LIMITED INFORMATION AVAILABLE TO DEFENDANT WHEN THE SUPPRESSION MOTION WAS MADE, THE ALLEGATION THE POLICE DID NOT HAVE PERMISSION TO ENTER WAS ENOUGH TO WARRANT A PROBABLE CAUSE HEARING; MATTER REMITTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing Supreme Court’s denial of a probable cause hearing, determined the evidence revealed for the first time at trial called into serious question whether the search of defendant’s apartment was unlawful. Prior to trial the information provided to defendant gave the impression the apartment was entered and searched pursuant to a warrant. At trial the police testified they entered the apartment two hours before the search warrant was issued. The defendant was convicted of drug possession. The suppression motion stated the police entered the apartment without defendant’s permission. Given the limited and misleading information available to the defendant at the time the suppression motion was made, the allegations in the motion were sufficient to warrant a probable cause hearing. The appeal was held in abeyance and the matter was sent back for the hearing:

… [T]he Appellate Division “may not make its own finding of an independent source based upon trial testimony” … . Thus, we cannot hold that the denial of the Mapp/Dunaway hearing was proper, and the claim unpreserved, due to legal arguments pertaining to the lawfulness of the search and based on evidence adduced at trial, well after the lower court ruled on the motion to suppress.

… [H]ere, the trial testimony is being used solely to determine the context of defendant’s motion, the extent of her lack of access to information …, and the extent of information withheld from the motion court prior to making its decision to summarily deny defendant’s motion. … [W]e find that defendant’s motion should not have been summarily denied pursuant to CPL 710.60, and a hearing should have been conducted to make the necessary findings of fact. People v Esperanza, 2022 NY Slip Op 00383, First Dept 1-25-22

 

,

GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

, , , ,

EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

,

DEFENDANT WAS ENTITLED TO A HEARNG ON HIS MOTION TO VACATE HIS MURDER CONVICTION ON THE GROUND OF ACTUAL INNOCENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his murder conviction on the ground of actual innocence:

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial” … . Further, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty” … . “A prima facie showing of actual innocence is made out when there is ‘a sufficient showing of possible merit to warrant a fuller exploration'” … . Upon a prima facie showing, a hearing should be conducted on a defendant’s claim of actual innocence … .

… [T]he defendant made a prima facie showing based upon the five affidavits from the alleged witnesses that he submitted and [the] recantation of [a witness’s] trial testimony [identifying defendant as the shooter]. People v Green, 2022 NY Slip Op 00315, Second Dept 1-19-22

 

, ,

DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to the manufacturer and retailer of a “hoverboard” on the products liability (design defect), failure to warn and implied warranty causes of action. Plaintiff alleged she was using the hoverboard in accordance with the instructions and was injured. The expert affidavit provided by the defendants was conclusory and did not eliminate questions of fact on the design defect cause of action:

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff’s actions constituted the sole proximate cause of his or her injuries … .

The defendants’ expert, in his affidavit, opined in mere conclusory fashion that the hoverboard was not defectively designed, without providing any explanation of the hoverboard’s design, or any discussion of industry standards or costs. Nor did the expert state whether the defendants had received complaints about any of the other hoverboards they had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the hoverboard was reasonably safe for its intended use … . LaScala v QVC, 2022 NY Slip Op 00305. Second Dept 1-19-22

 

,

A DEFENSE WITNESS WHO WOULD HAVE TESTIFIED THAT A KEY PROSECUTION WITNESS HAD A POOR REPUTATION FOR TRUTHFULNESS AND VERACTIY SHOULD NOT HAVE BEEN PROHIBITED FROM TESTIFYING; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the witness who would have testified that the complainant’s mother, a prosecution witness, had a poor reputation for truthfulness and veracity should not have been prohibited from testifying:

… [T]he defendant sought to introduce testimony from Marie Anisca-Oral, a friend of his older sister, on the subject of the reputation for truthfulness and veracity of the eight-year-old complainant’s mother (hereinafter the mother), who testified for the prosecution. In order to lay the foundation for such testimony, Anisca-Oral, a staff sergeant in the United States Army, described a community of seven or eight friends and acquaintances, predominantly of Haitian nationality, and predominantly living within certain neighborhoods in Brooklyn. Anisca-Oral testified that she had known the mother since 1999, that almost everyone she knew also knew the mother, and that every time she saw her acquaintances among this group, the mother’s reputation for truthfulness and veracity was discussed. “[T]he presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid”… . “A reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability” … . “The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury” … . People v Lisene, 2022 NY Slip Op 00194, Second Dept 1-12-22

 

,

THE DOCUMENTS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT PRODUCED RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report was inadmissible hearsay because the documents upon which the calculations were based were not produced:

The defendant correctly contends, however, that the referee’s calculation was not substantially supported by the record. Modlin’s [the loan servicer’s] affidavit, which was submitted to the referee for the purpose of establishing the amount due on the mortgage loan, appeared to lay a proper foundation for the admission of the business records on which she relied, including the payment history for the loan, in making her calculations. Modlin averred that she was an authorized signatory of Caliber, U.S. Bank’s loan servicer and attorney-in-fact, that she had reviewed Caliber’s electronic records regarding the defendant’s account, and that she had “knowledge of how those electronic records [were] kept and maintained” … . Modlin further averred that the business records of any prior servicer had been “uploaded and boarded into [Caliber’s] computer records” and were “maintained in connection with the servicing of [the subject] loan”,,, , In addition, U.S. Bank Trust demonstrated Caliber’s authority to act on its behalf by submitting the limited power of attorney.

Nevertheless, computations based on the review of unproduced business records amount to inadmissible hearsay and lack probative value … . Here, U.S. Bank Trust did not submit to the referee copies of the business records upon which Modlin purportedly relied in computing the amount due on the mortgage loan. Consequently, the referee’s findings in that respect were not substantially supported by the record … . U.S. Bank Trust, N.A. v Bank of Am., N.A., 2022 NY Slip Op 00213, Second Dept 1-12-22

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy