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THE MOTION FOR A JUDGMENT AS A MATTER OF LAW (CPLR 4401) FINDING THE NYC HOUSING AUTHORITY LIABLE FOR A BEDBUG INFESTATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter law (CPLR 4401), finding the NYC Housing Authority (NYCHA) liable for a bedbug infestation of plaintiffs’ apartments, should not have been granted:

A motion pursuant to CPLR 4401 should not be granted unless, affording the party opposing the motion every inference which may properly be drawn from the facts presented, and viewing the evidence in the light most favorable to the nonmovant, there is no rational process by which the jury could find for the nonmovant against the moving party … . A court considering a motion for a directed verdict “must not ‘engage in a weighing of the evidence,’ nor may it direct a verdict where ‘the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question'” … .

… [T]he evidence adduced at trial, viewed in the light most favorable to NYCHA, did not establish that there is no rational process by which the jury could find in favor of NYCHA … . The evidence included the plaintiffs’ testimony, as well as the parties’ competing expert testimony regarding the appropriate protocols for the treatment of a bedbug infestation and competing conclusions by the expert witnesses as to whether NYCHA’s bedbug eradication efforts were appropriate. Although a landlord’s violation of a municipal ordinance, including, as relevant here, Administrative Code of the City of New York §§ 27-2017 and 27-2018, may constitute some evidence of negligence for the jury to take into account, it does not constitute negligence per se … . Aponte v New York City Hous. Auth., 2021 NY Slip Op 05114, Second Dept 9-29-21

 

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THE PEOPLE PROPERLY RELIED ON HEARSAY TO DEMONSTRATE PROBABLE CAUSE AT THE SUPPRESSION HEARING; THE DEFENDANT DID NOT PRESENT ANY EVIDENCE TO CALL THE RELIABILITY OF THE HEARSAY INTO QUESTION (FIRST DEPT).

The First Department explained the People’s burden of proof when relying on hearsay evidence at a suppression hearing. Here the transit officers who witnessed defendant commit “farebeating” (providing probable cause) were not called to testify. The hearsay was deemed admissible under Aguilar-Spinelli and the defendant did not call the accuracy or reliability of the hearsay into question by cross-examination or the presentation of evidence:

Defendant’s main argument on appeal is that the People failed to meet their burden of coming forward with evidence demonstrating probable cause with respect to the underlying theft of services arrest — which created the circumstances for the testifying officer’s discovery of defendant — because they did not present any testimony from the Transit Bureau officers who had firsthand knowledge of the farebeating offense.  …

Probable cause may properly be established based on hearsay testimony … , such as the officer’s testimony about what he was told by the transit officers, so long as, under the Aguilar-Spinelli test, the People establish that there was “some basis” of knowledge for the underlying statement and that it was “reliable”… . The “some basis” requirement is satisfied where, as here, the information is based on personal knowledge … .

Although the People will fail to meet their burden at a suppression hearing where they rely exclusively on hearsay evidence and “the defense challenges the sufficiency of the evidence, whether by cross-examining the People’s witness or putting on a defense case” … , that is not the situation here, because defendant did not present any evidence, identify anything in the People’s case, or elicit any statements on cross-examination that undercut the veracity of the transit officers’ account of a farebeating, as relayed by the testifying officer … . The unsupported assertion in defendant’s moving papers that he was seized without reason was not sufficient to necessitate calling the transit officers as witnesses. People v Gerard, 2021 NY Slip Op 05089, First Dept 9-28-21

 

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THE REFEREE’S REPORT WAS BASED UPON INFORMATION IN BUSINESS RECORDS WHICH WERE NOT ATTACHED TO THE AFFIDAVIT IN WHICH THE RECORDS WERE DESCRIBED; THE INFORMATION IN THE AFFIDAVIT WAS THEREFORE INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee in this foreclosure action relied on information in business records which were not provided along with the affidavit describing them:

The defendant argues … that the Supreme Court erred in confirming the referee’s report because the referee’s computation was premised upon unproduced business records. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . Here, the affidavit executed by an employee of the plaintiff submitted for the purpose of establishing the amount due and owing under the subject mortgage loan constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records she purportedly relied upon in making her calculations … . Consequently, the referee’s findings with respect to the total amount due under the mortgage were not substantially supported by the record … . Wells Fargo Bank, NA v Clerge, 2021 NY Slip Op 05038, Second Dept 9-22-21

 

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PROOF OF MAILING OF THE RPAPL 1304 NOTICE TO THE CORRECT ADDRESS WAS NOT INCLUDED IN THE INITIAL MOTION PAPERS AND THEREFORE WAS NOT PART OF PLAINTIFF’S ATTEMPT TO MAKE OUT A PRIMA FACIE CASE; IN ADDTIION, THE PROOF OF MAILING OF THE RPAPL 1304 NOTICE WAS DEFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant failed to demonstrate compliance with the RPAPL 1304 notice requirements in this foreclosure action. The proof of mailing to the correct address was first provided in reply papers for the motion to confirm the referee’s report and was not part of plaintiff’s initial summary judgment motion. And the proof of mailing was not supported by proof of the affiant’s knowledge of the mailing practices and procedures of the party which actually mailed the documents:

Although Cantu [plaintiff’s default servicing officer] stated in his affidavit that the RPAPL 1304 notices were mailed by certified and first-class mail to the defendants at the property, and he attached copies of 90-day notices with corresponding certified and first-class envelopes, Cantu did not attach the 90-day notices and envelopes addressed to the property where the defendants resided or any United States Post Office documentation showing that the purported mailings to the property actually occurred … . To the extent the plaintiff relies on copies of the 90-day notices with corresponding certified and first-class envelopes addressed to the property which were submitted for the first time in its reply papers on its subsequent motion … to confirm the referee’s report, those documents were insufficient to satisfy the plaintiff’s prima facie burden on its initial motion … for summary judgment … . “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . Further, while Cantu asserted that he had personal knowledge of the plaintiff’s procedures for creating and maintaining its business records, he did not attest that he was familiar with the mailing practices and procedures of Walz, the third-party entity that he acknowledged sent the notices … . Thus, the plaintiff failed to establish proof of standard office practices and procedures designed to ensure the notices were properly addressed and mailed … . Caliber Home Loans, Inc. v Weinstein, 2021 NY Slip Op 05021, Second Dept 9-22-21

 

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IN THIS ELECTION LAW CASE, THE SIGNATORIES’ NAMES WERE PRINTED ON THE DESIGNATING PETITION BUT WERE INSCRIBED ON THE VOTER REGISTRATION FORMS; SUPREME COURT PROPERLY ACCEPTED PROOF THAT THE SIGNATORIES WHOSE NAMES WERE PRINTED WERE IN FACT THE SAME AS THOSE WHOSE SIGNATURES WERE ON THE REGISTRATION FORMS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly received evidence that signatories whose names were printed on the independent nominating petition were in fact the same as those whose signatures were inscribed on the voter registration forms:

It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory’s registration form” … . Nevertheless, where there is “credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition,” the signatures are valid, notwithstanding a discrepancy with the voter registration forms … . Here, respondents submitted affidavits from 21 of the 47 signatories with printed signatures in which they attested that they were the same individuals whose signatures appeared on the independent nominating petition. Based on those affidavits, which the court properly received in evidence, we conclude that the court did not err in determining that petitioner failed to meet her burden of proof with respect to the invalidity of those 21 signatures … . Matter of Maclay v Dipasquale, 2021 NY Slip Op 05013, Fourth Dept 9-16-21

 

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HUSBAND DID NOT DEMONSTRATE HIS WIFE FRAUDULENTLY INDUCED HIM TO MARRY HER TO OBTAIN UNITED STATES CITIZENSHIP; THE MARRIAGE SHOULD NOT HAVE BEEN ANNULLED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the husband did not demonstrate he was fraudulently induced to marry his wife. Husband argued his wife, who was from the Philippines, induced him to marry her in order to become a United States citizen. Supreme Court annulled the marriage. The Third Department held the husband did not meet his burden of proof:

Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§ 7 [4]; 140 [e] … ). To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse’s consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased … . …

The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. The husband’s proof primarily consisted of testimony establishing premarital and marital discord between the parties. Although the husband sought to attribute that discord to a fraudulent premarital intent, he ultimately failed to demonstrate “that the marital break was due to any cause other than the general discontent and incompatibility of the parties” … . Indeed, the husband’s own proof demonstrated that, during their marital spats, the wife indicated her desire to leave the marriage and return to her family and friends in the Philippines. The fact that she remained in the United States after the parties ceased cohabitating is insufficient to demonstrate that, prior to the marriage, the wife had the intent to induce the husband to marry with the sole objective of obtaining an immigration benefit. In determining otherwise, Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. Travis A. v Vilma B., 2021 NY Slip Op 04996, Third Dept 9-16-21

 

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THE AFFIDAVITS SUBMITTED TO DEMONSTRATE THE FAIR MARKET VALUE OF THE FORECLOSED PROPERTY IN THIS ACTION SEEKING A DEFICIENCY JUDGMENT PURSUANT TO RPAPL 1371 (2) WERE DEFECIENT; SUPREME COURT PROPERLY ORDERED A HEARING TO ESTABLISH THE FAIR MARKET VALUE (SECOND DEPT).

The Second Department in this foreclosure proceeding seeking a deficiency judgment determined Supreme Court properly ordered a hearing to establish the fair market value of the property. The submitted affidavits were not sufficient:

“RPAPL 1371(2) permits the mortgagee in a mortgage foreclosure action to recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher” …  When a lender moves to secure a deficiency judgment against a borrower, “the court . . . shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof” … . “It is the lender who bears the initial burden of demonstrating, prima facie, the property’s fair market value as of the date of the auction sale”… . “RPAPL 1371 does not require the court to hold an evidentiary hearing; however, where ‘a triable issue as to the reasonable market value is presented, that issue should not be decided upon affidavits, but by the court or a referee, so that the witnesses may be subject to observation and cross-examination'” … . …

The appraisal … was not certified, nor was it accompanied by an affidavit of the appraiser. Moreover, the appraisal stated that the value indicated by the income approach was in the amount of $450,000, while the value indicated by the sales comparison approach was in the amount of $480,000. There was no explanation as to why the Supreme Court should accept the value based on the income approach as opposed to the sales comparison approach. U.S. Bank, N.A. v 199-02 Linden Blvd. Realty, LLC, 2021 NY Slip Op 04991, Second Dept 8-15-21

 

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THE BANK IN THIS FORECLOSURE ACTION WAS NOT REQUIRED TO MEET THE 90-DAY-NOTICE REQUIREMENT OF RPAPL 1304 BECAUSE THE DEFENDANT HAD MOVED FROM THE RESIDENCE; HOWEVER THE BANK WAS STILL REQUIRED BY RPAPL 1304 TO PROVIDE NOTICE OF THE FORECLOSURE TO THE DEFENDANT; THE PROOF THAT NOTICE WAS MAILED WAS INSUFFICIENT (SECOND DEPT).

The Second Department determined the loan in question in this foreclosure proceeding was a “home loan” within the meaning of RPAPL 1304 and therefore the notice requirements of RPAPL 13O4 applied. The bank argued the loan was not a “home loan” because the defendant no longer lived on the property. The Second Department held that, because the defendant had moved, the 90-day-notice required by RPAPL 1304 did not apply, but the bank was still obligated to notify the defendants of the foreclosure action. Because the bank did not submit sufficient proof of compliance with the notice provisions of RPAPL 1304, the bank’s motion for summary judgment was properly denied:

… [W]hile finding, pursuant to RPAPL 1304(3), that “[g]iven that Defendant no longer occupies the residence as his principal dwelling place, the ninety-day period specified in the notice is inapplicable,” the Supreme Court properly concluded that “Defendant’s loan qualified as a ‘home loan’ under RPAPL § 1304(5) due to the fact that the home was Defendant’s primary residence from the time of the loan until he was transferred to California in 2011,” and that, “[t]herefore, Plaintiff needed to serve statutory notice pursuant to RPAPL § 1304 on Defendant by first class mail and certified mail.” …

To establish its compliance with the notice requirements of RPAPL 1304, the plaintiff submitted the affidavit of its employee, Takesha Brown, a document execution specialist. Although Brown stated in her affidavit that the RPAPL 1304 notices were mailed by certified and regular first-class mail, she did not attest to having personal knowledge of the mailing, and the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the notices were actually mailed to the defendant … . In addition, the plaintiff failed to provide “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” … . Nationstar Mtge., LLC v Jong Sim, 2021 NY Slip Op 04979, Second Dept 9-15-21

 

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THE EVIDENCE OF ALTERCATIONS IN THE PRESENCE OF THE CHILDREN AND ALCOHOL CONSUMPTION DID NOT SUPPORT THE NEGLECT FINDINGS (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect findings were not supported by the record:

With respect to the April 2018 incident, petitioner did not sufficiently demonstrate the presence of the children during the altercation that occurred. Given that “a finding of imminent danger is contingent on the child[ren] being present,” the evidence relating to that incident was not relevant and was insufficient to support a finding of neglect … .With respect to the January 2019 incident, it is undisputed that all of the children except the oldest child were asleep during the altercation; as such, the evidence presented could not support a finding of neglect as to the younger children. As to the oldest child, it is true that “a single act of domestic violence may be sufficient to establish neglect if the child is present for such violence and is visibly upset and frightened by it” … . However, the proof at the fact-finding hearing failed in this regard because it was not established that the oldest child was visibly upset or frightened. Thus, petitioner failed to demonstrate that the oldest child was in imminent risk of emotional or physical impairment … . Moreover, the oldest child’s out-of-court statements that the father gave her two to three shots of alcohol were not corroborated by the other evidence presented by petitioner, and the mere “repetition of an accusation by a child does not corroborate that child’s prior account” … . To the contrary, even petitioner’s witnesses conceded that such a level of alcohol consumption was not supported by their observations of the oldest child’s demeanor and her .01 blood alcohol content. With respect to the allegations of alcohol abuse while caring for the children, “[t]here was insufficient evidence that [respondents] ‘misused alcoholic beverages to the extent that [they] lost self-control of [their] actions,’ or that the physical, mental, or emotional condition of the children had been impaired or was in imminent danger of becoming impaired” … . Matter of Josiah P. (Peggy P.), 2021 NY Slip Op 04936, Third Dept 9-2-21

 

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THE PEOPLE DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE TRAFFIC STOP; THE 911 CALL WAS NOT PUT IN EVIDENCE AND THE RELIABILITY OF THE CALLER AND THE BASIS FOR THE CALLER’S KNOWLEDGE WERE NOT DEMONSTRATED; THE FACT THAT THE RELEVANT EVIDENCE WAS PRESENTED AT TRIAL WAS IRRELEVANT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People did not present sufficient evidence at the suppression hearing. Probable cause for the traffic stop was based on a 911 call. But no evidence was presented to demonstrate the reliability of the caller or the basis for the caller’s knowledge. The fact that the relevant evidence was presented at trial did not matter. The appeal focuses on the evidence presented at the suppression hearing:

… [T]he officer’s only justification for the stop was the dispatcher’s report that a 911 caller had asserted that one of the vehicle’s occupants possessed a “long gun.” Initially, defendant claims that the stop was invalid because possession of a “long gun” is lawful in New York. We reject that claim as meritless (see Penal Law 265.00 [22]). However, the People failed to introduce the 911 recording, failed to introduce any evidence indicating whether the 911 caller was an identified citizen informant or an anonymous tipster, and failed to offer any explanation of the basis of the caller’s knowledge. In sum, the People put forward no relevant information concerning the circumstances surrounding the call at the hearing. Contrary to the People’s suggestion that an appellate court can consider evidence subsequently admitted at trial to justify affirmance of an order denying suppression, “the propriety of the denial must be judged on the evidence before the suppression court” … . Therefore, on the record of the suppression hearing, “whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established” … . People v Walls, 2021 NY Slip Op 04949, CtApp 9-2-21

 

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