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THE BANK IN THIS FORECLOSURE ACTION WAS NOT REQUIRED TO DEMONSTRATE IT WAS A LICENSED DEBT COLLECTION AGENCY PURSUANT TO THE NYC ADMINISTRATIVE CODE; THE BANK DID NOT ATTACH THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE DEFENDANT’S DEFAULT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined: (1) the bank in this foreclosure action did not have to allege it was a licensed “debt collection agency” pursuant to the NYC Administrative Code (20-490); (2) the proof of defendant’s default was inadmissible hearsay:

A judicial foreclosure action such as the one at bar does not constitute the sort of tactics “shocking to the conscience of ordinary people”—like phone calls at unreasonable hours and other threatening behavior—that the subject Administrative Code provisions were enacted to address. Furthermore, the particular requirements and prohibitions placed upon debt collectors under the Administrative Code are concerned with ensuring that consumers can verify that payment on a debt is actually due, learn the correct amount of the debt, and meaningfully communicate with the debt collection agency about the debt … . In the context of judicial foreclosure, the state statutory scheme operates to protect homeowners and ensure fairness in the process, in a far more comprehensive manner and in ways that might not be entirely consistent with the Administrative Code provisions. * * *

… [T]he plaintiff failed to sustain its initial burden of demonstrating that the defendants defaulted in the repayment of the subject note. To establish such default, the plaintiff relied upon an affidavit of a representative of its loan servicer, whose averment regarding the defendants’ default was based upon her review of unidentified business records. Inasmuch as no business records were attached to, or otherwise incorporated into, the affidavit, this averment constituted inadmissible hearsay lacking in probative value … . Citibank, N.A. v Yanling Wu, 2021 NY Slip Op 04902, Second Dept 9-1-21

 

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THE SMELL OF PCP PROVIDED PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S VEHICLE; DEFENDANT’S APPELLATE COUNSEL WAS CHASTISED FOR FAILURE TO CALL THE COURT’S ATTENTION TO CONTRARY AUTHORITY, UNFOUNDED ASSERTIONS THAT THE APPEAL PRESENTED A MATTER OF FIRST IMPRESSION, AND UNFOUNDED ALLEGATIONS OF PERJURY, MISCONDUCT AND CIVIL RIGHTS VIOLATIONS AGAINST AN ARRESTING OFFICER (FOURTH DEPT).

THIS OPINION WAS VACATED ON JANUARY 28, 2022, AND REPLACED WITH 2022 NY Slip Op 00560

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the police officer’s (Dorchester’s) testimony at the suppression hearing established probable cause to search defendant’s car based upon the smell of PCP, or, as the court described it, “olfactory detection of street-level PCP.” The opinion was as much directed to improprieties in the appellate brief as to  the “olfactory detection of PCP:”

“[A]s soon as I walked up to the vehicle,” Dorchester testified, “I could smell a really strong chemical odor that was familiar to myself as PCP.” Dorchester had received PCP training at the police academy; he regularly received updated training on PCP and other drugs; and he had encountered PCP and its distinctive smell “hundreds” of times over the course of his career as a police officer. Based on his training and experience, Dorchester testified, he immediately recognized the odor emanating from defendant’s vehicle as PCP. When pressed on whether he could have been smelling something else, Dorchester held firm: the smell of PCP, he explained, was “pretty distinct.” * * *

[I]t is astoundingly inaccurate for defendant’s brief to assert that “[t]his is a case of first impression.” Moreover, the representation in defendant’s brief that “none of the Appellate Divisions . . . has ever passed upon the question of whether the smell of PCP may, standing alone, constitute probable cause to search” is an unacceptable dereliction of counsel’s duty of candor to our Court, for the First Department has done precisely that in two separate cases … . And given that Sanchez [168 AD3d 584] involved a car search, the statement in defendant’s brief that “no appellate case law from this state . . . has approved the search of a vehicle based solely on the smell of PCP” is yet another misrepresentation of the caselaw. We take this opportunity to echo the First Department’s monition that “counsel has an obligation to bring adverse authority to [our] attention” … . * * *

… [D]efendant’s appellate brief levels serious allegations of perjury, official misconduct, and federal civil rights violations against officer Dorchester. The record, however, lacks any proof to substantiate appellate counsel’s accusations. It is one thing to suggest that Dorchester’s testimony was legally insufficient to justify the search … . But it is quite another thing to file a brief that directly, repeatedly, and unnecessarily accuses Dorchester of serious crimes without evidentiary support. Counsel’s “baseless assertions are shockingly irresponsible” … . People v Fudge, 2021 NY Slip Op 04801, Fourth Dept 8-26-21

 

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THE MAJORITY APPLIED THE DISCOVERY STATUTE IN EFFECT AT THE TIME THE ORDER TO TURN OVER THE ROSARIO MATERIAL ONE WEEK BEFORE TRIAL WAS MADE, FINDING THE ORDER PROPER; THE CONCURRENCE AGREED BUT ARGUED THE COURT SHOULD EXPLICITLY RULE THAT THE DISCOVERY STATUTE ENACTED IN 2019 SHOULD ALWAYS BE APPLIED PROSPECTIVELY (FOURTH DEPT).

The Fourth Department, over a concurrence, affirmed defendant’s conviction. One of the issues in the appeal was whether it was appropriate for the court to order the prosecution to turn over Rosario material one week before trial. The majority ruled the order was proper under the former law, CPL former 240.45. The concurrence agreed but argued the court should decide whether the current law, enacted in 2019 (see CPL 245.10 [1] [a]; 245.20) should always be applied prospectively:

We reject defendant’s contention that he was deprived of a fair trial by the prosecutor’s failure to produce a video-recorded statement of the victim until one week prior to trial. Defendant does not dispute that the recording constitutes Rosario material. Under the discovery rules in effect at the time of defendant’s trial, “[w]here, as here, [a] witness[ is] not called to testify at a pretrial hearing, Rosario material need not be disclosed until ‘[a]fter the jury has been sworn and before the prosecutor’s opening address’ ” ( … CPL former 240.45 [1] [a]). Neither party requested that this Court consider the retroactivity of the new discovery statute now in effect. People v Austen, 2021 NY Slip Op 04798, Fourth Dept 8-26-21

 

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SOMEONE WAS TRYING TO OPEN THE DOOR TO DEFENDANT’S HOME AND SHE SHOT THROUGH THE DOOR, KILLING HER BOYFRIEND; DEFENDANT’S REQUEST FOR A “LAWFUL TEMPORARY POSSESSION OF A WEAPON” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, ordering a new trial on the possession of a weapon charge, over a strong dissent, ,determined defendant was entitled to a “lawful temporary possession of a weapon” jury instruction. Someone was trying to open the door to defendant’s home and she shot through the door, killing her boyfriend. She was acquitted of homicide:

Defendant testified that she had inadvertently discovered the firearm while attempting to protect herself in the face of an imminent threat, i.e., a person forcibly trying to enter her home. Specifically, she thought that her estranged husband, who had previously attacked her in her home, was the person attempting to forcibly enter the home. She discovered the firearm while trying to find in her kitchen an object to defend herself, and she did not know beforehand that the firearm was there. When the person at the door continued trying to enter the home, defendant shot through the door to scare him away. Thereafter, defendant saw that she had shot the victim—her boyfriend. She then dropped the firearm, and started to provide first aid. The firearm was not recovered after the shooting, and defendant did not know what happened to it. …

… [W]e conclude that there is a reasonable view of the evidence … that she came into possession of the firearm in a legally excusable manner that was not ” ‘utterly at odds with [any] claim of innocent possession’ ” … . …

We also conclude … there is a reasonable view thereof that defendant’s use of the firearm did not require a finding that she had used it in a dangerous manner … . People v Ruiz, 2021 NY Slip Op 04827, Fourth Dept 8-26-21

 

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THE NONDOMICILIARY DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK; NEW YORK DID NOT HAVE PERSONAL JURISDICTION OVER THIS TRUST LITIGATION (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined New York did not have jurisdiction over this trust litigation:

In the petition, the settlor and beneficiary of the trust (decedent) sought an accounting and removal of respondent, a Virginia resident, as trustee. The trust was created in 1996 in New Jersey. At the time the trust was created, decedent was a resident of Illinois and respondent was a resident of Georgia. Respondent administered the trust from Georgia until he relocated to Virginia, and he administered the trust from Virginia thereafter. Decedent relocated to New York in 2016. Solely as a consequence of decedent’s choice of residence, respondent sent to New York occasional trust-related correspondence, including “five or six” checks disbursing trust assets.

… “Due process requires that a nondomiciliary have ‘certain minimum contacts’ with the forum and ‘that the maintenance of the suit does not offend traditional notions of fair play and substantial justice’ ” … A nondomiciliary has minimum contacts with New York if he or she “purposefully avails” himself or herself of “the privilege of conducting activities within” New York … . thereby ” ‘invoking the benefits and protections’ ” of New York’s laws … . Our focus is on ” ‘the relationship among the [respondent], the forum, and the litigation’ “… . We conclude that respondent lacks the requisite minimum contacts with the New York forum. He does not live, own property, or conduct business in New York. The first and only relationship that New York had to the subject trust was 20 years after its creation, when decedent became domiciled in New York and respondent disbursed trust assets to her in New York … . Matter of Murad Irrevocable Trust, 2021 NY Slip Op 04823, Fourth Dept 8-26-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON THE MOTION TO VACATE THE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS DESPITE THE ABSENCE OF AN AFFIDAVIT FROM TRIAL COUNSEL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was entitled to a hearing on the motion to vacate the conviction on ineffective assistance grounds, despite the absence of an affidavit from trial counsel:

[Defendant’s] claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record … . Here, defendant’s submissions on the motion raise factual issues requiring a hearing concerning trial counsel’s failure to interview and call the two exculpatory witnesses … , even in the absence of an affidavit from trial counsel … . We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as ” ‘such a claim constitutes a single, unified claim that must be assessed in totality’ ” … . People v Ross, 2021 NY Slip Op 04820, Fourth Dept 8-26-21

 

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SUPREME COURT PROPERLY ANNULLED THE ELECTION BOARD’S DESIGNATION OF AN EARLY VOTING POLLING PLACE BECAUSE THE BOARD DID NOT DEMONSTRATE THE LOCATION MET THE ELECTION LAW REQUIREMENTS MANDATING A LOCATION ACCESSIBLE TO CITY RESIDENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined Supreme Court properly annulled the determination of the Rensselaer County Board of Elections designating an early voting polling pace pursuant to Election Law section 8-600. The 3rd Department also granted the motion to intervene in the Article 78 proceeding brought by the NAACP and three minority and/or disabled residents who argued for a polling place accessible to city residents dependent on public transportation:

… [I]n designating early voting polling places, the Board “shall have at least one polling place” in the City (as Rensselaer County’s most populous municipality) and, because the City has public transportation, “such polling place shall be situated along such transportation routes” (Election Law § 8-600 [2] [a]). Election Law § 8-600 (2) (e) further states that any early voting polling place “shall be located so that voters in the county have adequate and equitable access, taking into consideration population density, travel time to the polling place, proximity to other early voting poll sites, public transportation routes, commuter traffic patterns and such other factors the board of elections deems appropriate” (see 9 NYCRR 6211.1 [c]). * * *

… [W]e conclude that the Board did not adequately address “whether the early voting site[s are] on or near public transportation” (9 NYCRR 6211.1 [c] [2] [iv]). The failure to address that mandatory factor “precludes meaningful review of the rationality of” the Board’s siting determination, renders the decision arbitrary and capricious and, by itself, warrants annulment … . The Board failed to meaningfully address most of the other factors as well. Accordingly, Supreme Court properly granted the petition and annulled the Board’s determination designating early voting polling places for the 2021 election … . Matter of People of the State of New York v Schofield, 2021 NY Slip Op 04785, Third Dept 8-26-21

 

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THE DEFENDANT’S CONCLUSORY AFFIDAVIT BLAMING THE DEFAULT JUDGMENT ON HIS PRIOR ATTORNEY WAS NOT A SUFFICIENT BASIS FOR VACATING THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s (Echevarria’s) affidavit blaming the default in this foreclosure action on his prior attorney was not sufficient to support vacating the default judgment:

… [W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse” … . “A conclusory, undetailed and uncorroborated claim of law office failure does not amount to a reasonable excuse” … .

Echevarria submitted an affidavit in which he asserted that his defaults “were due entirely to [the] negligence” of his prior attorney, who, without Echevarria’s knowledge, failed to file an answer to the complaint or opposition to the plaintiff’s motion for leave to enter a default judgment against Echevarria. According to his affidavit, Echevarria only learned of the defaults upon receiving notice of the foreclosure sale. We agree with the plaintiff that Echevarria’s claim of law office failure, which was based solely on the “conclusory and unsubstantiated” allegations in his affidavit, was insufficient to amount to a reasonable excuse … . Wilmington Sav. Fund Socy., FSB v Rodriguez, 2021 NY Slip Op 04784, Second Dept 8-25-21

 

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WHETHER A DELAY IN DIAGNOSIS AFFECTED PLAINTIFF’S PROGNOSIS IS USUALLY A JURY QUESTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact which precluded summary judgment in favor of defendant. The court noted that whether a delay in diagnosis affected prognosis is usually a question for the jury:

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” … . On a motion for summary judgment, the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties … . “Conflicting expert opinions raise credibility issues which are to be resolved by the factfinder” … . …

Contrary to [defendant] Riegelhaupt’s contention, the plaintiffs’ expert, who is board certified in internal medicine and gastroenterology, was qualified to give an opinion of Riegelhaupt’s care of the injured plaintiff in Riegelhaupt’s capacity as the injured plaintiff’s primary care physician. Moreover, there are triable issues of fact as to whether Riegelhaupt assumed a duty to assist in the treatment of the injured plaintiff’s gastrointestinal issue, and whether Riegelhaupt’s alleged departures delayed the diagnosis of the injured plaintiff’s ulcerative colitis and decreased his chances of having a better outcome. Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury … . Wiater v Lewis, 2021 NY Slip Op 04783, Second Dept 8-25-21

 

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IN THE CONTEXT OF THIS COMPLICATED FORECLOSURE DECISION, THE 2ND DEPARTMENT EXPLAINED (1) WHEN EVIDENCE SUBMITTED IN REPLY CAN BE CONSIDERED AND (2) THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, addressed (1) when evidence presented in reply can be considered and (2) how to meet the criteria of the business records exception to the hearsay rule:

Supreme Court … should have considered the Lee affidavit … . … [T]he defendant did not object to the plaintiff’s submission of the Lee affidavit, despite its being submitted for the first time in reply, and does not raise any objection to its admission on appeal. In any event, “[a]lthough a party moving for summary judgement cannot meet its prima facie burden by submitting evidence for the first time in reply” … , the Lee affidavit was an exception to that rule, as it was submitted in response to a specific argument raised for the first time in opposition to the plaintiff’s motion and in support of the defendant’s cross motion … , and the defendant could have responded to the Lee affidavit in his reply papers in further support of his cross motion … . * * *

… [W]hile the Lee affidavit was sufficient to lay a proper foundation for the admission of a business record pursuant to CPLR 4518(a) … , Lee failed to identify the records upon which she relied in making the statements, and the plaintiff failed to submit copies of the records themselves. “[T]he business record exception to the hearsay rule applies to a ‘writing or record’ … . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “While a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . Thus, Lee’s assertions as to the contents of the plaintiff’s records were “inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit” … . Moreover, while “a witness may always testify as to matters which are within his or her personal knowledge through personal observation” … , Lee did not attest to such personal knowledge regarding the physical whereabouts of the consolidated note during the relevant time … . U.S. Bank N.A. v Pickering-Robinson, 2021 NY Slip Op 04775, Second Dept 8-25-21​

 

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