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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 The admission raised a question of fact whether the note and mortgage had been superseded by a loan modification: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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THE MOTION TO AMEND THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; PLAIINTIFF FAILED TO DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend the answer to assert the lack-of-standing defense and plaintiff bank did not demonstrate standing with admissible evidence:

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” ( …see CPLR 3025[b]). The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion … . “‘Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'”… . Here, BAC Home failed to show that any surprise or prejudice would result from the proposed amendments and did not demonstrate that the proposed amendments were palpably insufficient or patently devoid of merit … .

The defendant did not waive the defense of lack of standing by failing to interpose the defense in his original answer or in a pre-answer motion to dismiss (see RPAPL 1302-a).

Here, in order to establish its standing, BAC Home [plaintiff’s predecessor] submitted affidavits from two document execution representatives of Ditech [plaintiff], each of whom stated that review of Ditech’s business records relating to the subject mortgage loan had confirmed that BAC Home was in possession of the note at the time the action was commenced. However, neither affiant identified any particular document reviewed, nor did they attach to their respective affidavits any admissible document to show that BAC Home possessed the note prior to the commencement of this action. The affidavits also failed to show that either affiant possessed personal knowledge of whether BAC Home possessed the note prior to the commencement of the action. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value (see CPLR 4518[a] …). Ditech Fin., LLC v Khan, 2020 NY Slip Op 07865, Second Dept 12-23-20

 

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A WALKWAY WET FROM RAIN WHICH WAS FALLING AT THE TIME OF THE SLIP AND FALL WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the slip and fall was caused by a dangerous condition. The walkway where plaintiff fell was wet from rain, which was falling at the time:

The mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing that the plaintiff’s slip and fall on the landing of a stairway leading to the entrance of the restaurant occurred solely because that area was wet due to precipitation. Among other things, in support of their motions, the defendants submitted the transcript of plaintiff’s deposition testimony, which indicates that the location where the plaintiff slipped and fell was wet due to the rain that had fallen and was falling at the time of his accident … . Derosa v Zaliv, LLC, 2020 NY Slip Op 07862, Second Dept 12-23-20

 

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THE BANKS’ COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because compliance with the notice requirements of RPAP 1304 was not demonstrated with admissible evidence:

… [T]he plaintiff submitted, inter alia, an affidavit of a business operations analyst employed by the plaintiff, together with copies of 90-day notices sent to the defendants and proof of filing statements from the New York State Department of Financial Services. Although some of the copies of the 90-day notices contain what appear to be bar codes with 22-digit numbers that include the words “USPS CERTIFIED MAIL,” the plaintiff failed to submit any evidence that the mailings were sent by first-class mail in addition to certified mail … . The plaintiff also failed to submit evidence of a standard office mailing procedure or an affidavit of the individual(s) who effected the service … . The submission by the plaintiff of evidence that it filed statements with the New York State Department of Financial Services, without more, is insufficient to establish that the mailing was accomplished pursuant to RPAPL 1304 … . CitiMortgage, Inc. v McGregor, 2020 NY Slip Op 07855, Second Dept 12-23-20

 

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CONSIDERING ALL THE MITIGATING FACTORS, DEFENDANT SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault conviction in the interest of justice and adjudicating defendant a youthful offender, in a full-fledged, comprehensive opinion by Justice Troutman, determined mitigating factors supported youthful offender status. Defendant was attacked by another high school student and didn’t realize the victim, a teacher, had intervened. The defendant injured the teacher’s hand with a knife. The Fourth Department went through all the so-called Cruikshank mitigating factors (People v Cruickshank, 105 AD2d 325, 334 [3d Dept 1985]) and further noted the sentencing court did not abuse its discretion by considering additional factors not mentioned in Cruikshank. All involved, including the prosecutor, the victim and the probation department, had recommended a youthful offender adjudication:

In addition to the Cruickshank factors, the parties raised and the court considered additional matters related to equity and discrimination. We reject defendant’s contention that the court abused its discretion in considering matters outside the Cruickshank factors. The applicable precedent states that the factors that must be considered “include” those nine factors … , and thus, as a matter of logic, those factors were never meant to be an exhaustive list of considerations. We conclude that matters of equity and discrimination are appropriate for sentencing courts to consider. Although we do not conclude that the court abused its discretion, we urge future courts to consider whether a defendant may be facing discrimination based on protected characteristics such as race or gender and to take an intersectional approach by considering the combined effect of the defendant’s specific characteristics and any bias that may arise therefrom … . Here, the prosecutor employed appropriate and effective restorative justice techniques and advocated for the result he believed just. We note that “prosecutors have ‘special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … , and this prosecutor deserves to be commended for discharging those responsibilities here. People v Z.H., 2020 NY Slip Op 07824,, Fourth Dept 12-23-20

 

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WITNESS TAMPERING CONVICTION AFTER TRIAL REVERSED; NO CHARGES WERE PENDING AT THE TIME OF THE COMMUNICATIONS WITH THE WITNESS (FOURTH DEPT).

The Fourth Department, reversing the witness tampering conviction and dismissing the indictment, determined the evidence was legally insufficient:

On appeal from a judgment convicting him upon a jury verdict of tampering with a witness in the third degree … , defendant contends that the conviction is based upon legally insufficient evidence. We agree. Although the evidence established that defendant assaulted the victim in violation of an order of protection and a few days later left the victim voicemails threatening her with violence if she pressed charges against him, defendant had not yet been arrested or charged with a crime in connection with the violation of the order of protection at the time he left the voicemails. Thus, at that time, the victim was not “about to be called as a witness in a criminal proceeding” … . People v Diroma, 2020 NY Slip Op 07817, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS DEFENDANT’S EXPERT’S OPINION THAT NERVE DAMAGE WAS NOT THE RESULT OF DEVIATION FROM THE STANDARD OF CARE; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit did not raise a question of fact in this medical malpractice case:

Although plaintiff submitted a physician’s affidavit in opposition to defendant’s motion, “[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician’s summary judgment motion” … . Where “the expert’s ultimate assertions are . . . unsupported by any evidentiary foundation, . . . [his or her] opinion should be given no probative force and is insufficient to withstand summary judgment” … . Here, plaintiff’s expert did not rebut the opinion in defendant’s affidavit that defendant’s surgical technique was appropriate to the situation in light of the fact that decedent’s lung was adherent to the heart, nor did plaintiff’s expert rebut defendant’s opinion that any possible phrenic nerve damage was the result of stretching caused by traction sutures and did not constitute a deviation from the standard of care. Campbell v Bell-Thomson, 2020 NY Slip Op 07807, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action alleging defendant doctor caused the bowel perforation should have been dismissed because plaintiff’s expert’s affidavit did not address it:

The affidavit of plaintiff’s expert addressed defendant’s conduct only with respect to the claims that he failed to diagnose and treat the bowel perforation intraoperatively and failed to timely and properly treat the bowel perforation postoperatively. Plaintiff’s expert acknowledged that bowel perforation is a known complication from this type of surgery. Thus, plaintiff failed to raise a triable issue of fact with respect to the claims that defendant negligently caused the bowel perforation … . We therefore conclude that the court erred in denying defendant’s motion with respect to those claims, and we modify the order accordingly. Bristol v Bunn, 2020 NY Slip Op 07773, Fourth Dept 12-23-20

 

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AN EXCEPTION TO THE BEST EVIDENCE RULE APPLIED, ALLOWING TESTIMONY DESCRIBING THE CONTENTS OF DESTROYED VIDEO SURVEILLANCE (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined an exception to the best evidence rule applied and testimony about the contents of a destroyed video surveillance was properly admitted in this grand larceny case:

Defendant appeals from a judgment … arising from the theft of wireless speakers valued in excess of $3,000 from a Target store … . Prior to trial, the People moved in limine for permission to introduce testimony from the store’s asset protection team leader (APT leader) regarding the contents of destroyed video surveillance footage that had depicted the incident. * * *

The best evidence rule “simply requires the production of an original writing where its contents are in dispute and sought to be proven” …  “The rule protects against fraud, perjury, and inaccurate recollection by allowing the [factfinder] to judge a document by its own literal terms” … . “Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence . . . and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” … . * * *

… [T]he People met their burden of establishing that the APT leader’s testimony regarding the unpreserved footage was a reliable and accurate portrayal of the contents of that footage … . People v Jackson, 2020 NY Slip Op 07744, Fourth Dept 12-23-20

 

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