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COMPLIANCE WITH THE NOTICE REQUIREMENT OF RPAPL 1304 WAS NOT PROVEN IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DETAIL (SECOND DEPT).

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

RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . Strict compliance with RPAPL 1304 notice to the borrower is a condition precedent to the commencement of a foreclosure action … . “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or 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” … .

Here, the only purported evidence submitted by the plaintiff in support of its motion to show that it complied with RPAPL 1304 was a hearsay statement in the affidavit of the plaintiff’s legal affairs representative. Moreover, contrary to the plaintiff’s assertions, the 90-day notice which was attached to her affirmation does not demonstrate that the mailing requirements of RPAPL 1304 were met … . The plaintiff failed to submit an affidavit of service or proof of first-class mailing by the United States Postal Service evidencing that the defendant was served by first-class mail in accordance with RPAPL 1304 … . The plaintiff not only failed to provide proof of the actual first-class mailing, but its legal affairs representative also lacked personal knowledge of the purported mailing and did not aver that she was familiar with the mailing practices and procedures of the entity that purportedly sent the notices … . Thus, the plaintiff submitted no evidence that the letter had been sent to the defendant by first-class mail more than 90 days prior to commencement of the action … . 21st Mtge. Corp. v Broderick, 2021 NY Slip Op 00825, Second Dept 2-10-21

 

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CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY JUDGMENT WHICH IS THE EQUIVALENT OF JUDGMENT AFTER TRIAL; DEFENDANT DOCTORS SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT CVS’S PROVIDING PLAINTIFF’S DECEDENT WITH THE WRONG DOSAGE OF MEDICINE MAY HAVE CONTRIBUTED TO HIS DEATH (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial in this medical malpractice case, determined the jury should not have heard evidence that CVS mistakenly gave plaintiff a double dose of a drug. CVS was a defendant but successfully moved for summary judgment prior to the trial:

… [T]he Supreme Court erred in permitting the jury to hear evidence that CVS Pharmacy, Inc. (hereinafter CVS), mistakenly gave the decedent a double dose of digoxin, and testimony from [defendant] Manvar that the double dose of digoxin predisposed the decedent to an arrhythmia that caused his cardiac arrest. CVS, a defendant in this action, was awarded summary judgment based on its argument that its error in giving the decedent a double dose of digoxin was not a substantial factor in causing the decedent’s cardiac arrest. As summary judgment is the “functional equivalent” of a trial, the court should have precluded [defendants] Huppert and Manvar from presenting evidence at trial that CVS’s negligence may have been a substantial factor in causing the decedent’s cardiac arrest … . Raineri v Lalani, 2021 NY Slip Op 00890, Second Dept 2-10-21

 

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DETAILED EXPLANATION OF HOW MAILING OF THE RPAPL 1304 NOTICE CAN (SHOULD) BE PROVEN (SECOND DEPT).

The Second Department, in affirming the judgment of foreclosure in favor of Nationstar, offered a detailed explanation of how mailing of the RPAPl 1304 notice can be proven:

The Supreme Court … properly determined that … Nationstar proved sufficient mailing of the statutory 90-day preforeclosure notice as required by RPAPL 1304. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action … . By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, “‘the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing,’ which can be ‘established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or 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'” … . The notice must also be in 14-point type … . Here, at the framed-issue hearing, Nationstar submitted evidence that a third-party vendor mailed the 90-day preforeclosure notice through the testimony of a witness who had personal knowledge of the vendor’s standard business practice with regard to sending the 90-day preforeclosure notice to borrowers, and who affirmed, based on the business records she reviewed regarding the subject loan, that the notices had been sent to the defendant in compliance with the requirements of RPAPL 1304 … . Notwithstanding the use of a third party to mail the 90-day preforeclosure notice, Nationstar tendered sufficient evidence demonstrating strict compliance with RPAPL 1304. Nationstar Mtge., LLC v Paganini, 2021 NY Slip Op 00852, Second Dept 2-10-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE AN ADEQUATE SPEEDY TRIAL MOTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing. The motion alleged defense counsel was ineffective for failing to make an adequate speedy trial motion. The Fourth Department found there was a question of fact about whether 88 days should have been excluded from the speedy trial calculation because the defendant was evading arrest:

… [T]he People contended that the speedy trial motion would have been denied even if properly pleaded because defendant was attempting to avoid apprehension and thus the 88 days preceding the People’s first statement of readiness were excludable pursuant to CPL 30.30 (4) (c) (i). In denying the CPL 440.10 motion without a hearing, the court concluded that the trial court had ruled that the 88 days between the commencement of the action and the People’s initial statement of readiness “was not chargeable to the People[] because defendant evaded arrest.” We note, however, that the only evidence in the record supporting the conclusion that defendant was evading arrest was the prosecutor’s statement at defendant’s arraignment on the indictment that she understood that defendant had “fled the area” and was heading to the New York City area, an assertion that was based solely on the supposition of an unnamed member of the police department’s central investigation division. We thus conclude that defendant’s submissions “support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing” … and that “[t]he People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing” … . People v Reed, 2021 NY Slip Op 00758, Fourth Dept 2-5-21

 

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WHETHER THE HOUSE FIRE WAS DELIBERATELY SET WAS NOT RELEVANT TO THE ESSENTIAL ELEMENTS OF THE INSURANCE-FRAUD OFFENSES STEMMING FROM OVERSTATING THE VALUE OF DESTROYED ITEMS AND MAKING CLAIMS FOR ITEMS DEFENDANT DID NOT OWN OR POSSESS; THEREFORE THE PROBATIVE VALUE OF THE ARSON INVESTIGATOR’S TESTIMONY OUTWEIGHED ITS PROBATIVE EFFECT; ALTHOUGH THE ERRORS WERE NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the arson investigator’s testimony the fire had been deliberately set was irrelevant to the insurance-fraud offenses and was sufficiently prejudicial to require a new trial. The defendant was charged with making false insurance claims for objects alleged to be lost in the house fire:

… [T]he investigator’s conclusion was highly prejudicial because it allowed the jury to speculate that defendant burned the house down with all of her possessions inside of it in order to collect the insurance money, which, if true, would be conclusive of her alleged intent to defraud. That prejudice was compounded by the limiting instructions that the court provided to the jury after opening statements. Inasmuch as the court had concluded prior to trial that the evidence in question was relevant and admissible for the purpose of completing the narrative of events, the court appropriately instructed the jury that the evidence would be received only for that limited purpose and, consistent with defendant’s request, also instructed the jury that she had not been charged with arson. However, the court further instructed the jury that, “every time you hear the word arson, . . . you should be thinking about not tying the arson to [defendant].” We conclude that the further instruction, if anything, had the effect of linking defendant to the arson in the minds of the jurors. Moreover, the prejudice to defendant was also compounded by the court’s failure to issue appropriate limiting instructions when the evidence in question was admitted and during the final charge to the jury … . Although defendant failed to preserve any challenge to the content or timing of the limiting instructions … we exercise our power to review in the interest of justice her contentions in those respects … . People v Murray, 021 NY Slip Op 00722, Fourth Dept 2-5-21

 

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THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the Court of Claims properly dismissed the claim on the ground that claimant’s decedent would have been killed in the car crash even if the barrier the car struck was a proper W beam as opposed to an improper steel box beam. The beams were erected across a closed bridge and claimant’s decedent was a passenger in the convertible which struck and passed under the box beams at both ends of the bridge. The dissenters argued that, upon remittal after a reversal in the first appeal, the Court of Claims was called upon to determine if the box beam was a dangerous condition which was a proximate cause in aggravating the injuries and did not do so. The dissenters noted that claimant’s decedent’s head injuries occurred when the car passed under the second box beam and he survived for 18 hours after the accident:

… [W]e remitted the matter to the Court of Claims to determine “whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death” … . …

… [W]e conclude that a fair interpretation of the evidence supports the court’s determination that the steel box beam was not a substantial factor in aggravating decedent’s injuries and causing his death. Claimant’s witnesses testified with respect to the type of barrier that defendants were required to use to block access to the bridge, i.e., a W-beam. Claimant also presented evidence that decedent’s impact with a W-beam would have led to the same result, i.e., a fatality.

FROM THE DISSENT:

… [T]he majority improperly elected to apply a “but for” standard of causation, rather than considering whether the negligence was a proximate cause of injury. In our view, applying a “but for” causation standard “would relieve from liability a negligent actor if the same harm might have been sustained had the actor not been negligent; yet the law is clear that that fact may be considered in fixing damages but does not relieve from liability” …  . Reames v State of New York, 2021 NY Slip Op 00712, Fourth Dept 2-5-21

 

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ALTHOUGH THE SIDEWALK DEFECT WAS SMALL, THE AREA WAS DARKENED BY SCAFFOLDING; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. There was evidence the defect in the sidewalk, although small, may not have been visible because scaffolding covered the sidewalk. In addition, defendants’ expert did not inspect the sidewalk until 3 1/2 years after the accident (after repairs had been made):

Defendants and the motion court relied extensively on the height differential between the sidewalk flags, applying a mechanistic disposition of a case based exclusively on the dimension of a sidewalk defect, which defendants’ expert measured to be seven-sixteenths of an inch … .

Plaintiff presented evidence that the height differential was not the only factor that caused her to trip. First, plaintiff established that the sidewalk was covered by a scaffolding that darkened the sidewalk and made it harder to see a sidewalk defect … . Second, plaintiff established through her expert that the expansion joint between the sidewalk flags was recessed an inch below the surface, when it should have been filled in and flush with the surface (see New York City Department of Transportation Highway Rule § 2-09[f][4][v]). The recessed expansion joint, which was repaired by the time defendants’ expert examined the sidewalk, added to the hazard …

Moreover, defendants’ expert did not inspect the area where plaintiff fell until more than 3 ½ years after plaintiff’s accident. Marks v 79th St. Tenants Corp., 2021 NY Slip Op 00629, First Detp 2-4-21

 

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THE METEOROLOGICAL DATA WAS NOT SWORN TO; DEFENDANTS THEREFORE DID NOT DEMONSTRATE THERE WAS A STORM IN PROGRESS IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendants asserted the storm in progress defense, but the meteorological data was not in admissible form:

In this action where plaintiff alleges that he was injured after he fell on a snowy or icy condition on defendants’ driveway, defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law. The meteorologists’ reports relied upon by defendants were not in admissible form … . The reports contain no jurat, stamp of a notary public, or any other indication that the experts were actually sworn … .

In any event, contrary to defendants’ contention, the testimony of the parties alone did not establish that the snowstorm was still in progress at the time of the accident, and was therefore insufficient to avail them of the storm in progress defense … . Morales v Gross, 2021 NY Slip Op 00632, First Dept 2-4-21

 

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DEFENDANT TOOK THE GUN FROM THE VICTIM AND KILLED THE VICTIM IN SELF DEFENSE; THE DEFENDANT’S BRIEF, TEMPORARY POSSESSION OF THE WEAPON AFTER THE SHOOTING DID NOT CONSTITUTE CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction, over a dissent, determined the temporary possession of the gun did not meet the criteria for criminal possession of a weapon second degree. The gun belonged to the victim. During a struggle with the defendant the gun fell to the ground. Both the defendant and the victim dove for the gun. The defendant retrieved it and shot the victim. The defendant held on to the gun very briefly and then disposed of it. The defendant was acquitted of murder:

As reflected by the fact that the jury acquitted the defendant of the murder charge, based upon the defense of justification, the defendant initially took possession of the gun with a valid legal excuse … , and there is no evidence that the defendant retained the gun beyond opportunities to hand it over to the authorities … . The cases cited by our dissenting colleague are clearly distinguishable, involving situations where a defendant retained possession of a gun until it was found by the police … , retained access to the gun after hiding it in a secure location … , acted furtively when confronted by police with a weapon on his person … , or disposed of the weapon during hot pursuit by the police … .

Indeed, our dissenting colleague acknowledges that turning the gun over to authorities is not an element of temporary and lawful possession … . Here, the defendant retained the gun for a brief period while he looked for his brother, and, not finding him, unloaded the gun and disposed of it in the trash. At trial, when he was asked about his intention, the defendant responded, “[m]y intention this is not my gun. Why hold it.” The evidence indicated that the defendant retained the gun for a sufficient time to dispose of it. The fact that he disposed of the gun without turning it into the authorities did not convert his temporary and lawful possession of the gun into illegal possession … . People v Rose, 2021 NY Slip Op 00577, Second Dept 2-3-21

 

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DEFENDANT ATTORNEY’S AFFIDAVIT IN SUPPORT OF ADMITTING LAW-FIRM BUSINESS RECORDS DID NOT INDICATE THE AFFIANT WAS FAMILIAR WITH THE RECORD KEEPING PRACTICES AND PROCEDURES OF THE LAW FIRM; THEREFORE THE COURT SHOULD NOT HAVE CONSIDERED THE RECORDS IN THE SUMMARY JUDGMENT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants failed to lay a proper foundation for the admissibility of business records (the Matter Ledger Card) which purported to describe the legal work done by defendants for plaintiff:

We agree with the plaintiff that the court should not have considered these documents because the defendants failed to submit them in admissible form … .

The defendants failed to lay a proper foundation for the admissibility of the Matter Ledger Card pursuant to CPLR 4518. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . [Defendant’s] affidavit failed to set forth that he “was personally familiar with [the law firm’s] record keeping practices and procedures” and, as a result, failed to lay a proper foundation for the admission of the Matter Ledger Card concerning the plaintiff’s payment history … . Anghel v Ruskin Moscou Faltischek, P.C., 2021 NY Slip Op 00403, Second Dept 1-27-21

 

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