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A NON-DEFECTIVE CELLAR DOOR CLOSED AND STRUCK PLAINTIFF’S HEAD; THE LEASE DID NOT REQUIRE THE DEFENDANT OUT-OF-POSSESSION LANDLORD TO MAINTAIN THE PREMISES; AND THERE WAS NO STRUCTURAL DEFECT; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant out-of-possession landlord (West 16th) was not liable for an injury from a non-defective cellar door which closed and struck plaintiff’s head:

It is well established that an out-of-possession landlord like West 16th “is generally not liable for negligence with respect to the condition of the demised premises unless it (1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision” … .

The lease did not obligate West 16th to maintain or repair the cellar doors or to install an auxiliary safety device on the cellar doors, which were fully functional and not broken in any way. …

Further, the alleged defect is not a structural defect contrary to a specific statutory safety provision. … [W]e have previously held that the failure to install a safety device to hold such doors open—the precise negligence alleged against West 16th herein—was “not a structural defect contrary to a specific statutory safety provision” … . Matias v West 16th Realty LLC, 2020 NY Slip Op 08000, First Dept 12-29-20

 

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THE DENIAL OF A MOTION TO PRECLUDE EVIDENCE WAS NOT AN APPEALABLE ORDER (FIRST DEPT).

The First Department held the denial of a motion to preclude evidence was not an appealable order:

[Supreme Court] denied defendants-appellants’ motion to preclude evidence of any alleged misrepresentations and/or breaches of contract not previously pled in the second amended complaint in support of the respective fraud and breach of contract causes of action, and held that plaintiffs could rely upon such evidence by amending their interrogatory answers in the future, unanimously dismissed, without costs, as taken from a nonappealable order.

“An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from a judgment rendered after trial” … . Here, defendants’ motion to preclude, which was made to limit plaintiffs’ allegations to those asserted in a second amended complaint, notwithstanding that outstanding discovery remained, including critical depositions, did not involve an evidentiary issue pertaining to the merits of the controversy or a substantial right to justify appellate review (see CPLR 5701[a][2][iv], [v] …). National Union Fire Ins. Co. of Pittsburgh, PA v Razzouk, 2020 NY Slip Op 08004, First Dept 12-29-20

 

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ALTHOUGH DEFENDANT DID NOT GIVE TIMELY NOTICE OF ALIBI EVIDENCE, COUNTY COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE ALIBI EVIDENCE; THE UNPRESERVED ERROR WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the grand larceny conviction in the interest of justice, determined defendant’s late request to present alibi evidence should have been granted:

County Court abused its discretion by precluding defendant from introducing testimony from defendant’s father at trial. …  The court rested its entire conclusion on the failure to comply with the Criminal Procedure Law and that good cause was not shown, despite the fact that defendant was not given an opportunity to respond to the People’s informal motion to preclude the alibi testimony. Notably, the court did not make any findings that defendant had an improper purpose in providing the late notice nor did it weigh the possibility of prejudice to the People against the right of defendant to present a defense … . Instead, the court, without hearing from defendant, implemented the most “drastic sanction” without considering any lesser sanctions that may have protected the People from potential prejudice … . In making the appropriate inquiry, alibi testimony would have been important to defendant’s defense given that much of the People’s argument was based on accomplice testimony and that the People would not have been prejudiced as they were already aware of the father’s statement. “Therefore, we find that County Court violated defendant’s constitutional right to present a defense” … . People v Lukosavich, 2020 NY Slip Op 07953, Third Dept 12-24-20

 

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DEFENDANT WAS THE TARGET OF A STING WHERE THE INVESTIGATOR POSED AS THE STEPFATHER OF A 14-YEAR-OLD GIRL WITH WHOM THE DEFENDANT WAS INVITED TO HAVE SEX; WHEN THE INVESTIGATOR SUMMONED THE STEPDAUGHTER TO MEET THE DEFENDANT, HE GOT UP AND WALKED AWAY; THE ATTEMPTED RAPE, CRIMINAL SEXUAL ACT AND ENDANGERING THE WELFARE OF A CHILD CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s convictions and dismissing the indictment, determined defendant did not come close enough to committing the sexual offenses suggested by the undercover investigator to meet the criteria for attempted rape, attempted criminal sexual act, and attempted endangering the welfare of a child. The undercover investigator suggested sex with his fictional 14-year-old stepdaughter. When the investigator indicated he was summoning the stepdaughter to meet the defendant, the defendant got up and walked away:

… [W]e cannot conclude that defendant came dangerously near engaging in sexual intercourse or oral sexual contact of any iteration with a minor under the age of 15 or any other act that would likely be injurious to the physical, mental or moral welfare of a child … . Although defendant engaged in conversations contemplating sexual contact with a 14-year-old and drove to a location where he was told a 14-year-old would be, under the circumstances of this case, his conduct did not pass the stage of mere preparation and bring him dangerously close to committing the attempted crimes of rape in the second degree, a criminal sexual act in the second degree or an act endangering the welfare of a child … . Moreover, intent to engage in sexual intercourse and the criminal sexual acts charged in the indictment cannot be inferred from the evidence, particularly given defendant’s passive and noncommittal statements when discussing potential contact with the 14-year-old stepdaughter, as well as the fact that defendant did not bring a condom or any other sexual item to the campsite … . Accordingly, inasmuch as the verdict is not supported by legally sufficient evidence, we reverse the judgment of conviction and dismiss the indictment … . People v Hiedeman, 2020 NY Slip Op 07954, Third Dept 12-24-20

 

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ALTHOUGH THE CARRIER HAD WAIVED ITS DEFENSE THAT THE INJURIES DID NOT ARISE OUT OF CLAIMAINT’S EMPLOYMENT BY FAILING TO SERVE A PREHEARING CONFERENCE STATEMENT, CLAIMANT WAS STILL REQUIRED TO PRESENT SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that, although the carrier had waived its defense that claimant’s injuries did not arise out of claimants’ employment as a police chief (by not serving a prehearing conference statement), the claimant was still required to present affirmative proof of that causal connection:

… [W]e agree with the Board that, as a result of its waiver of defenses, the carrier was precluded from submitting evidence on the issue of whether claimant’s injuries arose out of and in the course of claimant’s employment … . However, the waiver of defenses did not relieve claimant of his obligation of coming forward with sufficient proof to establish that he sustained a compensable injury … . In that regard, claimant bore the burden of demonstrating that a sufficient causal nexus existed between his employment and the motor vehicle accident that caused his injuries … . The degree of control exercised by the employer over the claimant’s activities at the time of the accident is controlling in determining whether the requisite causal nexus exists … .

The record evidence establishes that claimant, the Village Chief of Police, was in an accident while driving his police vehicle on the third day of a personal weekend trip to his son’s college, roughly 4½ to 5 hours away from the Village. Claimant testified that he carried his work cell phone, that he was on call 24 hours a day and that he drove his police vehicle to his weekend destination so that he could return to the Village if needed. However, claimant testified that he was not recalled at any point during the weekend and was not in the course of returning to work or attending to any other police matter at the time of his accident. Matter of Love v Village of Pleasantville, 2020 NY Slip Op 07968, Third Dept 12-24-20

 

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THE BANK DID NOT PRESENT ADMISSIBLE EVIDENCE OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present admissible evidence of defendants’ default in this foreclosure action:

… [T]he plaintiff failed to establish, prima facie, a default in payment by Vanterpool and Chalas [defendants]. While the plaintiff submitted an affidavit by someone with personal knowledge of the plaintiff’s loan servicer’s business practices and procedures, the affiant failed to submit any business record to substantiate the alleged default … . Further, “[w]hile 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” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . U.S. Bank Trust, N.A. v Vanterpool, 2020 NY Slip Op 07946, Second Dept 12-23-20

 

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THE BANK PRESENTED INADMISSIBLE EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not submit admissible evidence of standing to bring the foreclosure action:

While a witness may always testify as to matters within his or her personal knowledge through personal observation … , here, Klein [plaintiff’s counsel] did not provide any factual details concerning when Cohn & Roth [Klein’s lawfirm] came into physical possession of the consolidated note and allonges … . Modlin’s [an authorized signatory’s] affidavit was similarly deficient inasmuch as she failed to identify the documents reviewed or any basis for the conclusion that the consolidated note and allonges had been in the plaintiff’s possession and were sent to Cohn & Roth prior to the commencement of the action. Under these circumstances, the statements made by Klein and Modlin constituted inadmissible hearsay and lacked probative value … . U.S. Bank Trust N.A. v Auxila, 2020 NY Slip Op 07945, Second Dept 12-23-20

 

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EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT, ASSAULT SECOND CONVICTION VACATED (SECOND DEPT).

The Second Department, vacating the assault second conviction, determined the evidence of “serious physical injury” was insufficient:

​The Legislature has defined the term “[s]erious physical injury” to mean “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” … .

Here … the evidence at the trial failed to demonstrate that the complainant suffered the protracted impairment of the function of a bodily organ as a result of the attack charged in count 2 of the indictment. This prong of the statute, by the plain language of the word “protracted,” requires evidence that the effects of the physical injury were experienced over an “extended” period of time … .  The People fail to cite to any evidence in this case, medical or otherwise, to show that the injury to the complainant resulted in any “protracted impairment” in the functioning of any of the complainant’s organs … . People v Clark, 2020 NY Slip Op 07911, Second Dept 12-23-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing with admissible evidence and the lost note affidavit was insufficient:

… [T]he only business record entered into evidence to support DeCaro’s [plaintiff’s loan verification consultant’s] testimony that the plaintiff was in possession of the note on the date of commencement was plaintiff’s Exhibit 7, a computer screen printout of a database tracking system. However, plaintiff’s Exhibit 7 failed to evince the facts for which it was relied upon. More specifically, while DeCaro contended that the document demonstrated that Wells Fargo, as custodian for the plaintiff, received the note July 16, 2005, and that the note was in Wells Fargo’s vault from July 2005 until December 2009, the document, in itself, failed to establish those facts.

Further, pursuant to UCC 3-804, which is intended to provide a method for recovering on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit due proof of the plaintiff’s ownership of the note, the facts which prevent the plaintiff from producing the note, and the note’s terms … . Here, the lost note affidavit, which failed to establish when the note was acquired and failed to provide sufficient facts as to when the search for the note occurred, who conducted the search, or how or when the note was lost, failed to sufficiently establish the plaintiff’s ownership of the note … . HSBC Bank USA, N.A. v Gilbert, 2020 NY Slip Op 07874, Second Dept 12-23-20

 

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AN INFORMAL JUDICIAL ADMISSTION BY PLAINTIFF BANK’S FORMER COUNSEL IN THIS FORECLOSURE ACTION RAISED A QUESTION OF FACT WHETHER THE LOAN HAD BEEN MODIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because of an informal judicial admission made by plaintiff’s former counsel. The admission raised a question of fact whether the note and mortgage had been superseded by a loan modification:

… [T]he averment of the plaintiff’s former counsel, in support of the voluntary discontinuance of the prior foreclosure action, that the loan had been modified, constituted an informal judicial admission by the plaintiff of that fact … . Informal judicial admissions are not conclusive, but are evidence of the fact admitted … .

On its motion, the plaintiff failed to proffer any evidence to explain the alleged error of its former counsel in a manner which would negate the probative value of his statement as an informal judicial admission. Accordingly, even assuming that the plaintiff’s submissions were otherwise sufficient to demonstrate, prima facie, the absence of a loan modification (see generally CPLR 4518[a] …) the former counsel’s admission raised a triable issue of fact as to the existence of a loan modification, which precluded summary judgment … . HSBC Bank USA, N.A. v Fortini, 2020 NY Slip Op 07873, Second Dept 12-23-20

 

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