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THE AFFIDAVIT UPON WHICH THE REFEREE’S REPORT WAS BASED DID NOT LAY A PROPER FOUNDATION FOR THE ASSERTIONS MADE BY THE AFFIANT AND THE CALCULATIONS IN THE AFFIDAVIT WERE BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED, RENDERING THE INFORMATION INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed. The affidavit submitted by the mortgage servicer was insufficient and the records upon which the calculations in the affidavit were based were not produced:

… [T]he referee’s report was not substantially supported by the record. The report was based in significant part on the affidavit of Elizabeth A. Ostermann, a vice president for Carrington Mortgage Services, LLC (hereinafter Carrington), the purported “servicer and attorney-in-fact” for the plaintiff. However, Ostermann did not set forth when Carrington began servicing the loan and did not provide a power of attorney appointing it as attorney-in-fact … . Moreover, Ostermann did not state that “she was personally familiar with the record-keeping practices and procedures” at Carrington … .

Furthermore, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the plaintiff did not submit the business records upon which Ostermann purportedly relied in computing the total amount due on the mortgage. Trust v Campbell, 2022 NY Slip Op 00845, Second Dept 2-9-22

Similar issue and result in HSBC Bank USA, N.A. v Sharon, 2022 NY Slip Op 00852, Second Dept 2-9-22

 

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION AFTER TRIAL ON THE GROUND PLAINTIFF DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THE DOCUMENTS REQUIRED TO MAKE OUT A PRIMA FACIE CASE; COMPLAINT REINSTATED AND JUDGMENT AWARDED TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action properly laid a proper foundation at trial for the admission of documents making out a prima facie case. Therefore the action should not have been dismissed and a judgment in favor of plaintiff should have been entered. At trial plaintiff established standing to bring the action, the defendant’s default, and compliance with the notice provisions of RPAPL 1304. Bank of Am., N.A. v Bloom, 2022 NY Slip Op 00839, Second Dept 2-9-22

 

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A PHOTOGRAPH DOWNLOADED FROM FACEBOOK ALLEGEDLY SHOWING DEFENDANT WEARING CLOTHES SIMILAR TO THE CLOTHES WORN BY THE PERPETRATOR SHOULD NOT HAVE BEEN ADMIITTED IN EVIDENCE; THE PHOTOGRAPH WAS NOT AUTHENTICATED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined that a photograph downloaded from Facebook allegedly showing the defendant wearing clothes similar to those worn by the perpetrator was not authenticated and should not have been admitted in evidence:

In order to admit a photograph into evidence, it must be authenticated by proof that it is genuine and that it has not been tampered with … . Here, the People failed to properly authenticate the photograph. The People’s only authentication evidence consisted of the testimony of a police witness who searched for the Facebook profile 1½ years after the crime. They did not proffer any evidence or testimony demonstrating that the photograph was “a fair and accurate representation of the scene depicted or that it was unaltered” … . To the contrary, the police witness testified that he did not know whether the photograph had been altered. Furthermore, the People did not present any evidence “to establish that the web page belonged to, and was controlled by, [the] defendant” or any evidence as to when the photograph was created or posted … .

… “[A]dmission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law” … . People v Mayo, 2022 NY Slip Op 00881, Second Dept 2-9-22

 

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ALTHOUGH THE ARRESTING OFFICER OBSERVED SOME INTERACTIONS WITH OTHERS BY THE DEFENDANT AT A LOCATION KNOWN FOR DRUG ACTIVITY, THE OFFICER DID NOT SEE ANY PROPERTY OR CURRENCY CHANGE HANDS AND DID NOT FIND ANY DRUGS OR CURRENCY ON THE DEFENDANT OR THE TWO MEN WITH HIM ON THE STREET; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST; THE HEROIN SUBSEQUENTLY FOUND IN THE POLICE CAR AND DEFENDANT’S STATEMENT HE HAD “DITCHED” THE DRUGS IN THE CAR SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress the heroin found in back seat of a police car and his statement that he had “ditched” the drugs in the car should have been suppressed because the arresting officer did not have probable cause at the time of defendant’s arrest. The officer had observed defendant engage in what appeared to the officer to be drug transactions on the street. But when the officer approached the defendant and two others on the street no drugs or currency were found. The defendant had been handcuffed and was subsequently arrested for loitering:

Detective Petrucci did not have probable cause to reasonably believe that the defendant was committing, or had committed, a crime, at any point prior to the defendant’s arrest (see id.). Detective Petrucci testified that he arrested the defendant on the basis of the defendant’s purported commission of loitering in the first degree, which is defined as “loiter[ing] or remain[ing] in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance” (Penal Law § 240.36). However, there was no testimony at the suppression hearing that the defendant had “remained” in any place with the other individuals with whom he interacted. The interactions between the defendant and the other individuals were described at the hearing as “quick,” “fluid,” and lasting approximately one minute. * * *

Detective Petrucci did not observe any physical property or currency being handled by the defendant or exchanged between the defendant and either Flores or Mugaburu prior to approaching the defendant, and did not otherwise recover any drugs or currency from the defendant, Flores, or Mugaburu prior to the defendant’s arrest. Contrary to the People’s contention, the observations that Detective Petrucci did make—several brief, nondescript interactions involving the defendant at an address known to the police for past drug activity—were not a sufficient basis for Detective Petrucci to form a reasonable belief that a narcotics offense was occurring or had been committed. People v Jones, 2022 NY Slip Op 00878, Second Dept 2-9-22

 

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IN THIS CASE INVOLVING A FATAL CAR ACCIDENT WHEN DEFENDANT WAS APPARENTLY “RACING” THE OTHER DRIVER, THE EVIDENCE PRESENTED TO THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT THE MANSLAUGHTER SECOND DEGREE CHARGE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing County Court’s dismissal of the indictment, determined the evidence of manslaughter second degree presented to the grand jury was legally sufficient:

… [V]iewing the evidence in the light most favorable to the People, we find that it was legally sufficient to support the charges of manslaughter in the second degree … . The evidence before the grand jury, if accepted as true, established that in addition to traveling at the excessive rate of speed of approximately 80 to 90 miles per hour, the defendant’s vehicle and the Porsche were weaving in and out of traffic, without braking or signaling. As the Porsche and the defendant’s vehicle approached a sharp bend in the roadway, they were traveling side-by-side, with the Porsche in the left lane. The defendant’s vehicle struck the Porsche while attempting to enter the left lane, which caused the Porsche to hit the left hand curb of the roadway and fly “at least a couple of hundred feet” in the air before coming to rest “at the bottom of the highway.” Two passengers riding in the Porsche were killed. Although the defendant told a police sergeant at the scene that he did not see the Porsche when he attempted to maneuver his vehicle into the left lane and believed that the Porsche was in his blind spot, he also stated that he was “kind of racing” with the Porsche … . People v Castro, 2022 NY Slip Op 00874, Second Dept 2-9-22

 

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments:

… [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the Supreme Court failed to ascertain … and whether or not he was and is able to comply with his child support obligation under the judgment of divorce … . Under such circumstances, the court erred in granting the defendant’s petition to modify the child support provisions of the judgment of divorce to the extent of directing him to pay $25 per month in child support retroactive to July 10, 2018, and in denying that branch of the plaintiff’s motion which was to adjudge the defendant in civil contempt for failure to pay child support without conducting a hearing … . Zeidman v Zeidman, 2022 NY Slip Op 00906, Second Dept 2-9-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate the defendants’ default in this foreclosure action:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form”… . Although Smith [plaintiff’s vice president] averred that she had personal knowledge of the plaintiff’s record-keeping practices and procedures, Smith’s purported knowledge of the alleged default was based upon her review of unidentified business records, which she failed to attach to her affidavit … . Thus, Smith’s assertions regarding the defendants’ alleged default constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, N.A. v Gross, 2022 NY Slip Op 00902, Second Dept 2-9-22

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted:

… Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record … . * * *

… Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a “change of circumstances since the [prior] custody determination” … . …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. Matter of Paige v Paige, 2022 NY Slip Op 00866, Second Dept 2-9-22

 

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FATHER ALLEGED CHANGES IN HIS WORK SCHEDULE ALLOWED MORE TIME FOR PARENTAL ACCESS WITH THE CHILD; A HEARING SHOULD HAVE BEEN ORDERED ON FATHER’S MODIFICATION PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined father had submitted sufficient evidence to warrant a hearing on his petition to modify the custody or parental access arrangement:

… [F]ather stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given this change, the father sought expanded parental access with the child. …

Entitlement to a hearing on a modification petition … is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests … . Requiring parents to make this threshold showing before a hearing is ordered serves an important purpose because … litigation of custody and visitation issues is emotionally fraught and “can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents” … .

… Family Court improperly dismissed the father’s petition. … [T]he father’s assertions, which were supported by the requisite threshold evidentiary showing, warranted a hearing to resolve whether the existing parental access arrangement continued to serve the child’s best interests … . Matter of LaPera v Restivo, 2022 NY Slip Op 00863, Second Dept 2-9-22

 

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