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THE BANK’S EVIDENCE OF STANDING DID NOT INCLUDE THE BUSINESS RECORDS REFERRED TO IN THE LOAN SERVICER’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence purporting to demonstrate the bank’s standing in this foreclosure action was insufficient. Therefore the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff submitted an affidavit of possession from Nichole Renee Williams, an employee of its loan servicer, who averred, inter alia, that, based upon her review of business records purportedly attached to the motion papers, the plaintiff was in physical possession of the note on the date of commencement of the action. However, the plaintiff failed to identify and produce those business records referred to by Williams in her affidavit. “[E]vidence of the contents of business records is admissible only where the records themselves are introduced” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Since Williams’ purported knowledge of the date that the plaintiff received the original note was based upon her review of unidentified and unproduced business records, her affidavit constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, NA v Oziel, 2021 NY Slip Op 04388, Second Dept 7-15-21

 

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MOTHER VIOLATED A COURT ORDER BY RELOCATING TO ARIZONA WITH THE CHILD; HOWEVER, HER ALLEGATIONS OF DOMESTIC ABUSE BY FATHER WERE CREDIBLE AND WARRANTED GRANTING HER CROSS PETITION TO RELOCATE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined mother’s cross petition to relocate with the child was properly granted, despite mother’s violation of a court order prohibiting her from permanently leaving Monroe County with the child without father’s consent, or without a court order allowing relocation. Mother testified that father was abusive and she feared for her life at times. Father denied all allegation of abuse. Family Court found mother’s testimony credible and did not credit father’s testimony:

Courts place considerable weight on the effect of domestic violence on the child … , particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety … , or where the father minimized the past incidents of domestic violence … . Indeed, where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child” … .

… [T]he court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence” … . Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter” … . Furthermore, although the court did not expressly engage in the analysis required under Tropea (87 NY2d at 740-741), according deference to the court’s factual findings and credibility assessments … we conclude that “there is a sound and substantial basis in the record supporting the court’s determination that ‘relocation would enhance the child[‘s life] economically, emotionally, and educationally, and that the child[‘s] relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits’ ” … . Matter of Edwards v Ferris, 2021 NY Slip Op 04306, Fourth Dept 7-9-21

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE WORN STEP IN THIS SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendants had constructive notice of the condition of a step in this slip and fall case:

… [T]he affidavit of plaintiff’s expert and the photographic evidence were sufficient to raise an issue of fact as to constructive notice. The expert opined that the condition depicted in the photographs violated the Building Code and that the step was worn for several years prior to the accident. Furthermore, the photographs depicted a condition that a jury might find was present for a sufficient time for defendants to have discovered and remedied it … . Martinez v 560-568 Audubon Realty LLC, 2021 NY Slip Op 04277, First Dept 7-8-21

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined County Court should not have denied defendant’s request for a circumstantial evidence jury instruction:

… [T]here was no direct evidence identifying defendant as the shooter or as having possessed a loaded firearm. Indeed, there was no DNA or fingerprint evidence linking defendant to the Colt .45 caliber handgun that was recovered near the scene or the shell casing and projectiles that were found to have been fired from that gun … . Further, the surveillance footage — which only distantly captured the incident — did not depict defendant with a firearm. Nor was it possible to discern from the footage who shot the victim. …

Despite denying defendant’s request for a circumstantial evidence charge, County Court nonetheless gave a modified version of the charge. This modified version, however, was wholly inadequate. Most importantly, the modified version failed to include a critical component of the circumstantial evidence charge — namely, “‘that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence'” … . Given that County Court improperly denied defendant’s request for a circumstantial evidence charge and that the modified charge was insufficient, “the jury could not have known of its duty to apply the circumstantial evidence standard to the prosecution’s entire case” … . People v Taylor, 2021 NY Slip Op 04258, Third Dept 7-8-21

 

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DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THE DECORATIVE FENCE IN THE GRASSY AREA BETWEEN THE CURB AND THE SIDEWALK WAS OPEN AND OBVIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner was not entitled to summary judgment in this slip and fall case. The plaintiff allegedly tripped over a decorative fence located in the grassy area between the curb and the sidewalk abutting defendants’ home. The defendants argued the fence was open and obvious:

“The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, contrary to the Supreme Court’s determination, the homeowner defendants failed to establish, prima facie, that the decorative fence was open and obvious and not inherently dangerous given the circumstances at the time of the accident, including the lighting conditions and color of the fence … . Rosenman v Siwiec, 2021 NY Slip Op 04248, Second Dept 7-7-21

 

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IN THIS SLIP AND FALL CASE, PROOF OF GENERAL CLEANING AND INSPECTION PRACTICES WAS NOT ENOUGH TO DEMONSTRATE THE LACK OF CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it didn’t have constructive notice of the liquid on the floor in this slip and fall case. Proof of general cleaning and inspection practices is not enough:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the hazardous condition and a reasonable time to correct it … . In that respect, the deposition testimony of the defendant’s witnesses as to their general cleaning and inspection practices, as well as the deposition testimony of a security supervisor surmising, based upon such general practices, when another security officer would have inspected the subject stairwell prior to the accident, was insufficient to demonstrate, as a matter of law, that the defendant lacked constructive notice of the hazardous condition … . Roland v Jackson Terrace Apts., 2021 NY Slip Op 04247, Second Dept 7-7-21

 

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IN THIS STREET STOP CASE, SOME OF THE POLICE OFFICERS’ TESTIMONY WAS REJECTED AS INCREDIBLE; THE PEOPLE DID NOT DEMONSTRATE THE LEVEL THREE ENCOUNTER WAS JUSTIFIED BY REASONABLE SUSPICION (SECOND DEPT).

The Second Department, dismissing the indictment, determined the People did not demonstrate the level three encounter with the defendant in the street stop was justified by reasonable suspicion. Some of the police officers’ testimony was rejected as incredible:

Officer Washington’s pursuit of the defendant and her attempt to grab him with her right hand were both level three actions requiring reasonable suspicion … . Setting aside those portions of Officer Washington’s account the Supreme Court properly disregarded as incredible, her testimony indicates that she began chasing and grabbing at the defendant in response to his flight. She did not, however, credibly describe anything more than equivocal circumstances in conjunction with the defendant’s flight, meaning her testimony was insufficient to justify police pursuit … . Officer Montano testified that the defendant dropped the gun before he fled, which in turn could justify Officer Washington’s pursuit … . But he also testified that Officer Washington was “trying to take her shield out as she [was] approaching [the defendant] to try to grab him” before the defendant dropped the gun or started to run. Officer Montano thus observed the defendant drop the gun and flee as a result of Officer Washington’s attempt to grab him before she had the reasonable suspicion necessary to do so. “Since this level three intrusion was not justified, it cannot be validated by the officer’s subsequent observation of the firearm” … . People v Rhames, 2021 NY Slip Op 04242, Second Dept 7-7-21

 

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THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the identification evidence was too weak to support a conviction, i.e., the conviction was against the weight of the evidence. Witnesses saw a man toss a bag of drugs over a fence and run away:

Both women saw the man holding what appeared to be a white shopping bag with red circles on it, which he threw over a chain-link fence nearby. The man continued running through the parking lot toward Grand Street.

One of the women described the man she saw as a black man with short, dark hair, wearing a dark baseball cap, a T-shirt, jeans, and sneakers. The man was “a little taller, somewhat taller” than five feet, two inches, but she was not sure. She estimated his weight to be 175 to 185 pounds, but she was not sure. She did not remember if he wore glasses. She could not describe the color of his clothing or give any description of the sneakers he wore. The other woman described the man as a young black male, approximately five feet, seven inches tall, but she could not say for sure, and “guesstimat[ed]” that he may have weighed 170 pounds. She testified that he wore a baseball cap and might have been wearing dark pants and dark sneakers. Neither woman was able to identify the defendant as the man they saw. …

… [N]either of the police witnesses observed the defendant carrying a bag, neither of the bystander witnesses was able to identify the defendant as the man carrying the bag, and no forensic evidence linked the defendant to the bag. … [T]he rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Although the vague description provided by the bystander witnesses was not inconsistent with the defendant’s general appearance, we find that such evidence, coupled with nothing more than the defendant’s proximity to the crime scene, is insufficient to establish, beyond a reasonable doubt, the defendant’s identity as the perpetrator … . People v Hawkins, 2021 NY Slip Op 04238, Second Dept 7-7-21

 

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STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

The Second Department, reversing defendant assault and criminal possession of a weapon convictions, determined the complainant’s hearsay statement should not have been admitted as excited utterances:

… [T]he Supreme Court erred in permitting the People to elicit testimony from two police officers on the content of certain hearsay statements made to them by the complainant when they encountered her at a deli a few hours after the alleged assault. …

“An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “The essential element of this hearsay exception is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his [or her] reflective capacity was stilled” … . “[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts” … . …

… [I]n light of the amount of time that elapsed between the incident and the statements … , and the lack of evidence as to what transpired in the interim … , the People did not establish that the complainant’s capacity for reflection and deliberation remained stilled by the time she spoke to the police officers at the deli … . People v Germosen, 2021 NY Slip Op 04237, Second Dept 7-7-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient:

… [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to establish, beyond a reasonable doubt, that the complainant sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . At the time of the incident, the complainant did not seek medical attention and proceeded on his way. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. However, he never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain relief cream to relieve pain. Under these circumstances, there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition … . People v Bowen, 2021 NY Slip Op 04236, Second Dept 7-7-21

 

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