You are here: / Evidence
, ,

THE MEDICAL CENTER WAS ENTITLED TO THE NO-FAULT INSURANCE BENEFITS ASSIGNED TO IT BY THE PEDESTRIAN INJURED BY PLAINTIFF’S TAXI; THE FACT THAT THE PEDESTRIAN HAD SETTLED HIS ACTION AGAINST THE PLAINTIFF TAXI COMPANY DID NOT HAVE ANY BEARING ON THE PLAINTIFF’S OBLIGATION TO PAY THE NO-FAULT BENEFITS TO THE MEDICAL CENTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant medical center was entitled to the no-fault benefits assigned to it by the pedestrian injured by plaintiff’s taxi in this traffic accident case. The fact that the pedestrian had settled his action against the plaintiff taxi company had no bearing on the assignment of the no-fault benefits to the medical center:

“[A]n account debtor is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and that payment is to be made to the assignee ” … . To establish that it did not receive notice of the assignment, the plaintiff relies solely on an affidavit of an employee of the plaintiff’s claims administrator, who asserted that the claims administrator never received the faxed notice on July 11, 2011. The employee’s assertion, however, was belied by overwhelming documentary evidence. Indeed, a denial of claim form dated July 20, 2011, which was prepared by the plaintiff’s claims administrator and attached to the employee’s affidavit, designated the defendant as the assignee. In addition, the defendant submitted an arbitration decision dated January 3, 2012, in which [the pedestrian’s] arbitration claim against the plaintiff for no-fault benefits was dismissed on the ground that he lacked standing because he assigned the claims for no-fault benefits. Under these circumstances, the plaintiff failed to raise a triable issue of fact as to whether it received notice of the assignment. Murzik Taxi, Inc. v Lutheran Med. Ctr., 2021 NY Slip Op 02302, Second Dept 4-14-21

 

, ,

CONFLICTING EVIDENCE ABOUT WHETHER THERE WAS VIDEO SURVEILLANCE OF THE AREA WERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL PRECLUDED SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. The incident report indicated there was video surveillance of the area where plaintiff allegedly slipped and fell on blueberries on the supermarket (Bogopa’s) floor. An employee of defendant testified he did not know of any surveillance cameras in the supermarket:

The Bogopa defendants moved for summary judgment to dismiss the complaint. In support of their motion, the Bogopa defendants submitted, among other things, a store incident report which checked a “yes” box when asked if the incident was captured on video, which should be preserved. * * *

The record presents contradictory statements from the Bogopa defendants regarding whether surveillance videos recording the time and location of plaintiff’s fall were available and should have been preserved pursuant to an express video-preservation directive in the incident report prepared by the Bogopa defendants following plaintiff’s accident. While the incident report mentions a surveillance recording, the Bogopa defendant’s employee testified that he did not “know of” any surveillance cameras in the supermarket.

The Bogopa defendants argue in their motion for summary judgment that there is no evidence that establishes the existence of surveillance cameras in the supermarket. We disagree. Where, as here, potential video evidence existed of the alleged hazardous location that may have been of assistance to plaintiff in establishing whether defendants created and/or had notice of an alleged slippery, blueberry-strewn floor hazard, the motion by the Bogopa defendants for summary judgment dismissing the complaint against them should be denied. Banks v Bogopa, Inc., 2021 NY Slip Op 02236, Frist Dept 4-13-21

 

, ,

A THEORY ASSERTED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANT’S SUMMARY JUDGMENT MOTION, AFTER DISCOVERY HAD ENDED, SHOULD NOT HAVE BEEN CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this breach of contract action should have been granted. Plaintiff raised a new theory in opposition to the motion, after discovery had ended:

Plaintiff Frank Darabont, represented by his agent, plaintiff Creative Arts Associates, entered into an agreement to develop and run the television series The Walking Dead in exchange for fixed payments for each episode of the series, as well as backend compensation contingent upon the show’s profitability, as calculated based on “Modified Adjusted Gross Receipts” (MAGR), with defendant AMC Network Entertainment LLC producing the series and exhibiting it on its own cable channel.

Plaintiffs’ claim that AMC breached the implied covenant of good faith and fair dealing by crafting the formula for MAGR arbitrarily, irrationally, or in bad faith was improperly asserted for the first time in opposition to defendants’ motion for summary judgment … . … [T]here are no allegations in the complaint that AMC engaged in misconduct by formulating the MAGR definition in such a manner as to deprive plaintiffs of contractual benefits. … [I]t would be prejudicial to require AMC to defend against a theory of liability asserted only after discovery had concluded. Darabont v AMC Network Entertainment LLC, 2021 NY Slip Op 02240, First Dept 4-13-21

 

, ,

THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304:

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. In support of its motion, the plaintiff submitted the affidavit of Mahilet Ayalew, a vice president of loan documentation of Wells Fargo Bank, N.A., the plaintiff’s servicer. Ayalew stated in the affidavit that 90-day notices were sent to the defendant on February 1, 2013, by regular and certified mail “in full compliance” with RPAPL 1304. The plaintiff additionally submitted copies of 90-day notices and indicia of mailing by certified mail, but not first-class mail. Ayalew’s affidavit was insufficient to establish that the notices were actually mailed since Ayalew did not aver that she had personal knowledge of the mailing or that she was familiar with the servicer’s standard office mailing practices and procedures … . HSBC Bank USA, N.A. v Cardona, 2021 NY Slip Op 02138, Second Dept 4-7-21

 

, ,

PLAINTIFF BANK, AT TRIAL, FAILED TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION; PLAINTIFF’S VERDICT REVERSED (SECOND DEPT).

The Second Department, reversing the plaintiff’s verdict in this foreclosure action, determined the plaintiff bank did not demonstrate (at trial) that it complied with the notice requirements of RPAPL 1304:

“‘In reviewing a determination . . . after a nonjury trial, this Court’s power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses'” … . At the nonjury trial, the plaintiff relied upon the testimony of its sole witness, who testified as to the standard office mailing procedure of the plaintiff’s prior and present loan servicer, but did not and could not attest to the practices and procedures of Walz Group, a third-party entity that was hired to undertake the requisite service of the notices on the defendants in accordance with the requirements of the mortgage agreement and RPAPL 1304. The plaintiff’s witness expressly testified that she did not have familiarity with Walz Group’s mailing practices “outside of their communications with” the loan servicer. In addition, the witness attested that she never mailed anything through Walz Group, was never employed by Walz Group, and was never trained by Walz Group in their procedures for mailing notices. Further, she testified that she could not say if Walz Group mailed the notices by first-class mail.

Thus, since the plaintiff’s sole witness did not have “knowledge of the mailing practices of the entity which sent the notice[s]” … , and the business records that were submitted in evidence failed to show that the requisite first-class mailings of the RPAPL 1304 notices or the notices of default were actually made to the defendants or that the default notices were actually delivered to their “notice address,” the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Bucicchia, 2021 NY Slip Op 02132, Second Dept 4-7-21

 

, ,

PLAINTIFF ALLEGED SHE WAS SEXUALLY ASSAULTED BY DEFENDANT’S EMPLOYEE; PLAINTIFF’S NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE WAS UNTIMELY BECAUSE THE THEORY WAS NOT ASSERTED IN THE ANSWERS; THE MOTION TO DIMSISS FOR FAILURE TO STATE A CAUSE OF ACTION WAS SUPPORTED ONLY BY INADMISSIBLE HEARSAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined: (1) defendant security company’s (Kent’s) motion to dismiss the negligent hiring, training, supervision and retention cause of action pursuant to CPLR 3211 (a)(1) was untimely because the defendant did not assert a defense based on documentary evidence in its answers; and (2) the defendant’s motion to dismiss for failure to state a claim failed because the affidavit submitted by defendant’s director of operations was not sworn to have been made on his personal knowledge and did not lay a proper foundation for the admissibility of the documents referred to in the affidavit as business records. Plaintiff, Erin, alleged a security guard employed by defendant (Kent) sexually assaulted her at a hotel where Kent provided security services:

… [T]he affidavit of Kent’s director of operations was not sworn to have been made on his own personal knowledge, and therefore was of no probative value as to the issues of fact that he addressed … . Moreover, although “an affidavit from an individual, even if the person has no personal knowledge of the facts, may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence” … , the affidavit must nevertheless “constitute a proper foundation for the admission of the records”… . Because Kent’s director of operations did not establish that the documents annexed to his affidavit fell within the business records exception to the hearsay rule (CPLR 4518[a]), those documents were inadmissible … .

Contrary to defendant’s argument, plaintiffs do have a well-pled negligent hiring claim cognizable at law. Plaintiffs’ allegations are sufficient to put Kent on notice of their claim that Kent negligently hired, trained, supervised, and retained the guard who, plaintiffs allege, sexually assaulted Erin, and that Kent knew or should have known of the guard’s propensity to commit sexual assault. Moreover, plaintiffs can amplify these allegations in their bill of particulars … . Doe v Intercontinental Hotels Group, PLC, 2021 NY Slip Op 02063, First Dept 4-1-21

 

,

SENTENCES FOR THE SALE OF TWO DRUGS IN THE SAME TRANSACTION SHOULD HAVE BEEN IMPOSED CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for two counts of criminal sale of a controlled substance should run concurrently because they were committed during a single transaction:

… [T]he People failed to prove that defendant committed two separate and distinct acts. Counts 1 and 2 were for criminal sale of a controlled substance in the third degree — one for each drug; thus, the actus reus elements are the same … . The record reveals that the CI made arrangements for one sale to take place and defendant engaged in a single transaction — one sale of two controlled substances. The sale occurred in defendant’s vehicle where there was an exchange of money for one bag of drugs, containing two smaller bags of drugs. As the offenses were committed through one single distinct act, the sentences imposed on counts 1 and 2 should run concurrently … . People v Muniz, 2021 NY Slip Op 02023, Third Dept 4-1-21

 

, ,

PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of compliance with the notice requirements of RPAPL 1304:

[T]he plaintiff submitted the affidavit of April Simmons, an employee of the plaintiff’s loan servicer, Nationstar Mortgage, LLC (hereinafter Nationstar), along with copies of two 90-day notices addressed to the defendant. Simmons, however, did not state in her affidavit that she personally mailed these notices to the defendant, and she did not aver that she was familiar with the mailing practices and procedures of the entity which sent the notices … . Moreover, although the envelopes accompanying the 90-day notices state “First-Class Mail” and contain a bar code above a 20-digit number, the plaintiff failed to submit any receipt or corresponding document proving that the notices were actually sent by first-class and certified mail to the defendant more than 90 days prior to the commencement of the action … . U.S. Bank, N.A. v Zientek, 2021 NY Slip Op 02015, Second Dept 3-31-21

 

, ,

PLAINTIFF BANK PRESENTED INSUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance RPAPL 1304 and therefore was not entitled to summary judgment:

… [T]he plaintiff submitted, inter alia, an affidavit of Tewana Sheriff, a foreclosure administrator for the plaintiff’s servicer who, based upon review of “business records maintained for the purpose of servicing plaintiff’s mortgage loans,” averred that the 90-day notice was sent via first-class and certified mail in accordance with RPAPL 1304. Sheriff did not refer to any specific records demonstrating compliance with RPAPL 1304, did not aver that she had personal knowledge of the subject mailings, and did not set forth personal knowledge of a standard office mailing procedure designed to ensure that items were properly addressed and mailed. Although the plaintiff submitted a signed certified mail receipt and United States Postal Service tracking information, those items do not refer to a 90-day notice, and a copy of the 90-day notice does not include a United States Postal Service tracking number corresponding with the certified mail receipt … . Moreover, the plaintiff failed to, inter alia, submit any proof of mailing the 90-day notice by first-class mail. Therefore, 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 defendants, to strike their answer, and for an order of reference … . Santander Bank, N.A. v Schaefer, 2021 NY Slip Op 02005, Second Dept 3-31-21

 

, ,

PLAINTIFF, AN EXTERMINATOR, WAS IN THE ATTIC OF DEFENDANT’S HOUSE; THE ATTIC HAD NO FLOOR AND THE PLAINTIFF WALKED ON THE BEAMS OR JOISTS; THE PLAINTIFF TESTIFIED HE STEPPED ON A SMALLER PIECE OF WOOD LYING ACROSS THE BEAMS, IT GAVE WAY AND HIS LEG WENT THROUGH THE CEILING; THE 2ND DEPARTMENT, OVER A TWO-JUSTICE DISSENT, DETERMINED THERE WAS NO EVIDENCE THE SMALLER BOARD WAS A LATENT DEFECT OR THAT DEFENDANT HAD NOTICE OF ANY DEFECT, SET ASIDE THE PLAINTIFF’S VERDICT AND DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to set aside the plaintiff’s verdict and dismiss the complaint should have been granted. Plaintiff, an exterminator, went into defendant’s attic which apparent had no floor, only the beams or joists. Plaintiff testified that there were some smaller boards lying across the joints. According to the plaintiff, when he stepped on one of the smaller boards it gave way and his leg went through the ceiling:

“[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question” … . However, in order to meet his prima facie burden of proof at trial, the plaintiff was required to submit sufficient evidence to enable the jury to decide this critical issue in a logical manner, based on the inferences to be drawn from the evidence, rather than through sheer speculation or guesswork … . Here, the evidence showed that the main beams were part of the structure of the house, but the function of the smaller pieces of wood was never really made clear, except that the plaintiff offered that they may have been intended to hold the insulation in place. In fact, the jury heard next to nothing about the smaller piece of wood that allegedly caused the plaintiff to fall. There were no pictures of it, no testimony regarding its dimensions, no evidence as to whether such a smaller piece of wood would ordinarily be safe to walk on, no evidence as to whether the smaller piece of wood even appeared reasonably safe to walk on, and no evidence that the smaller piece of wood was in a rotted, deteriorated, or otherwise unsafe condition, other than the plaintiff’s testimony that it looked “discolored” and “pretty damp.”

Viewing the evidence in the light most favorable to the plaintiff, and affording him every favorable inference which may properly be drawn from the facts presented, there was simply no rational basis upon which the jury could determine, without speculating, that the smaller piece of wood that allegedly caused the plaintiff to fall constituted a latent hazard due to its alleged rotted condition … . Saintume v Lamattina, 2021 NY Slip Op 02004, Second Dept 3-31-21

 

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