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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank (Wilmington) did not demonstrate defendants’ default in this foreclosure action and the bank’s motion for summary judgment should not have been granted:

Wilmington failed to establish, prima facie, its entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendants’ default in payment … . In support of the motion, Wilmington submitted … copies of the note and the mortgage, and the affidavit of Angela Farmer, a vice president of Rushmore Loan Management Services, LLC (hereinafter Rushmore), the servicer of the loan. Based on her review of business records in the possession of Rushmore, including records created by Ditech [the original plaintiff, note was transferred to Wilmington], Farmer averred that the defendants defaulted in payment in June 2013. While Farmer established that she was familiar with Ditech’s recordkeeping practices and procedures, no payment records were proffered with the motion. The only business records annexed and incorporated in the affidavit with regard to the default were two notices of default both dated October 24, 2013 … . “‘[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” … . Wilmington Sav. Fund, FSB v Peters, 020 NY Slip Op 07248, Second Dept 12-2-20

 

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THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank did not demonstrate standing to bring the foreclosure action and the bank’s motion for summary judgment was properly denied:

“Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “‘[E]vidence of the contents of business records is admissible only where the records themselves are introduced'” … . Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay (see CPLR 4518[a] … ). Here, Herberg’s [bank’s vice president’s] assertion, in effect, that the plaintiff was the holder of the note when it commenced the action appears to be based upon unproduced business records or upon confirmation of information from some other unproduced source, and is therefore not probative on the issue of the plaintiff’s standing … . Wells Fargo Bank, N.A. v Atedgi, 2020 NY Slip Op 07247, Second Dept 12-2-20

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 OR THE MORTGAGE AND DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (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. The bank failed to demonstrate compliance with the notice requirements of RPAPL 1304, the notice of default requirements of the mortgage, and standing to bring the action. Evidence submitted in reply papers should not have been considered:

… [T]he plaintiff submitted the affidavit of DiMario Abrams, a vice president for the plaintiff’s loan servicer, as well as copies of the notices and the envelopes in which the notices were allegedly mailed. Abrams did not purport to have personal knowledge of the actual mailing of the notices pursuant to RPAPL 1304, he did not purport to have personal knowledge of the mailing procedures utilized by the plaintiff’s loan servicer, and he did not lay a proper foundation under the business records exception to the hearsay rule with respect to the notices and envelopes attached to his affidavit … . * * *

The plaintiff submitted a lost note affidavit prepared by Dereje D. Badada, a vice president for its loan servicer. According to that affidavit, the note had “been inadvertently lost, misplaced or destroyed,” and the loan servicer had “not pledged, assigned, transferred, hypothecated or otherwise disposed of the note.” There was no allegation in the lost note affidavit that the note had ever been delivered or assigned to the plaintiff, nor were there any details regarding when or how the note was lost, who searched for the note, or when they searched for the note. Therefore, the lost note affidavit did not establish the plaintiff’s ownership of the note or the facts preventing it from producing the note (see UCC 3-804 …). U.S. Bank N.A. v Kohanov, 2020 NY Slip Op 07242, Second Dept 12-2-20

 

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THE “DUAL JURY” PROCEDURE USED TO TRY DEFENDANT, WHO WAS CONVICTED, AND THE CO-DEFENDANT, WHO WAS ACQUITTED, ALLOWED THE CO-DEFENDANT’S ATTORNEY TO ACT AS A SECOND PROSECUTOR; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s (Feliciano’s) murder and robbery convictions, determined the “dual jury” procedure used to try Feliciano and his co-defendant, Roberts, deprived Feliciano of a fair trial. Feliciano’s defense was he was with Roberts when Roberts committed the crimes but did not participate. Roberts’ defense was he did not participate in the crimes at all. Feliciano was convicted and Roberts was acquitted:

In reviewing Feliciano’s claim on appeal that he was entitled to a severance, we are required to consider the entire record, including, retrospectively, the full trial record … . Feliciano must demonstrate that he was unduly prejudiced by the severance and that a joint trial “substantially impair[ed defendant’s] defense” … . “[T]he level of prejudice required to override the strong public policy favoring joinder” exists “where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . A trial before dual juries, which constitutes a modified form of severance, is to be used sparingly and is evaluated under standards for reviewing severance motions generally, as set forth above … . * * *

[Damaging] … testimony and evidence was unsolicited by the People and would never have been presented to Feliciano’s jury, but for Roberts’ cross examination. Roberts’ counsel’s pursuit of his client’s defense, contemporaneously undermined Feliciano’s. Accordingly, he effectively became a “second prosecutor” and was able to impeach … witnesses to Feliciano’s detriment in a manner that the People were unable to. Under these circumstances, a dual jury trial was improper as it did not prevent Feliciano from being prejudiced by Roberts’ antagonistic defense … . People v Feliciano, 2020 NY Slip Op 07145, First Dept 12-1-20

 

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THERE WAS A QUESTION OF FACT WHETHER THE VEHICLE WHICH STRUCK PETITIONER WAS THE VEHICLE INSURED BY GEICO; ARBITRATION OF PETITIONER’S DEMAND FOR UNINSURED MOTORIST BENEFITS FROM ALLSTATE, HER INSURER, SHOULD HAVE BEEN STAYED AND A FRAMED ISSUE HEARING SHOULD HAVE BEEN ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stay of arbitration should have been granted and a framed issue hearing granted. Respondent, Michelle Robinson, was struck from behind The driver, Randall, gave Robinson her contact information but left the scene before the police arrived. GEICO, the insurer of the offending vehicle, denied Robinson’s claim stating that Lewis, not Randall, was their insured. Robinson then demanded arbitration for uninsured motorist benefits from Allstate, her insurer. Allstate moved to stay arbitration and requested a framed issue hearing:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

Here, the documents submitted by Allstate in support of the petition demonstrated the existence of sufficient evidentiary facts to establish a preliminary issue justifying a temporary stay … . By submitting the MV-104 motor vehicle accident report and the MVR vehicle record report with the results of the license plate search for the plate number provided by Robinson, Allstate made a prima facie showing that the offending vehicle involved in the subject accident had insurance coverage with GEICO at the time of the accident … .

In opposition, Robinson and the GEICO respondents raised questions of fact as to whether the offending vehicle was involved in the subject accident … . Matter of Allstate Ins. Co. v Robinson, 2020 NY Slip Op 07051, Second Dept 11-25-20

 

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THE CHILD’S HEARSAY STATEMENTS CLAIMING HE WAS PUNCHED IN THE STOMACH WERE NOT CORROBORATED AND THEREFORE COULD NOT SUPPORT A FINDING OF NEGLECT BY THE INFLICTION OF EXCESSIVE CORPORAL PUNISHMENT (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the child’s hearsay statements claiming Manuel R. punched him in the stomach were not corroborated. Therefore the finding that Manuel R. neglected the child by inflicting excessive corporal punishment:

… [G]enerally a petitioner must present nonhearsay, relevant evidence to reliably corroborate the out-of-court disclosures … . Moreover, “repetition of an accusation by a child does not corroborate the child’s prior account of it” … .

Here, where there was no physical evidence of neglect, the child’s out-of-court statements that Manuel R. disciplined him by punching him in the stomach were not sufficiently corroborated by nonhearsay, relevant evidence tending to support the reliability of the statements. While the child did say “ow, ow it hurt” when a case worker touched his stomach, this occurred after the caseworker told the child that she did not see bruises on his stomach. Moreover, although the child made a fist to demonstrate to the caseworker what Manuel R. allegedly did when he punched him, he did this at the same time he made his verbal accusation that Manuel R. punched him. Under these circumstances, the child’s reaction to the caseworker’s touch and his gesture in making a fist were simply a repetition of his verbal accusation, which did not serve to corroborate his out-of-court statements … . As there was no other evidence tending to corroborate the child’s out-of-court statement, the Family Court’s finding that Manuel R. inflicted excessive corporal punishment on the child was not supported by a preponderance of the evidence. Matter of Treyvone A. (Manuel R.), 2020 NY Slip Op 07049, Second Dept 11-25-20

 

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UNDER THE AGUILAR-SPINELLI ANALYSIS, THERE ARE QUESTIONS OF FACT ABOUT WHETHER THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST; THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE 42 USC 1983, FALSE ARREST, ASSAULT AND BATTERY CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment on the 42 USC 1983, false arrest, assault and battery causes of action should not have been granted. Under the Aguilar-Spinelli analysis, there were questions of fact about the existence of probable cause for plaintiff’s arrest:

“The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest, including a cause of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that is the federal-law equivalent of a state common-law false arrest cause of action” … . “However, [w]hen an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant” … . Where the arrest was made without a prior judicial determination of probable cause, and where the arresting officer’s alleged probable cause is based on hearsay, probable cause is properly evaluated under the Aguilar-Spinelli test … . Under the Aguilar-Spinelli rule, where, as here, probable cause is predicated upon the hearsay statement of an informant, the proponent of the hearsay statement “must demonstrate that the informant is reliable and that the informant had a sufficient basis for his or her knowledge” … . Here the defendants failed to eliminate triable issues of fact as to the existence of probable cause for the arrest. The existence of triable issues of fact with respect to whether the police evaluations at issue, such as the evaluation of probable cause to arrest and requisite suspicion to perform a strip search, were objectively reasonable precludes an award of summary judgment … on the ground of qualified immunity … .

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . A claim predicated on assault and battery may be based upon contact during an unlawful arrest … . Here, the defendants’ failure to establish, prima facie, that the plaintiff’s arrest was lawful precluded an award of summary judgment dismissing the sixth cause of action, which alleged assault and battery … . Cayruth v City of Mount Vernon, 2020 NY Slip Op 07027, Second Dept 11-25-20

 

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE DEFENDANT’S ALLEGATION PLAINTIFFS’ CAR STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s allegation plaintiffs’ vehicle came to a sudden stop did not raise a question of fact about defendant’s negligence in this rear-end collision case:

… [T]he defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied to this case … . “[T]he emergency doctrine does not apply to typical accidents involving rear-end collisions because trailing drivers are required to leave a reasonable distance between their vehicles and vehicles ahead” … . Although the defendants submitted a police accident report and the affidavit of Miller, both of which contained statements that the plaintiffs’ vehicle made a sudden stop behind a vehicle that came to an abrupt stop in front of them, Miller testified at his deposition that he could not recall the speed at which he was traveling, or when he first observed the plaintiffs’ vehicle, prior to the accident. “Without such evidence, the assertion that the [plaintiffs’] vehicle came to a sudden stop was insufficient to rebut the inference that [Miller] was negligent” … , and failed to demonstrate that the emergency doctrine was applicable to this case … . Capuozzo v Miller, 2020 NY Slip Op 07026, Second Dept 11-25-20

 

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CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE IS NOT AN ARMED FELONY; MATTER REMITTED FOR A NEW YOUTHFUL OFFENDER STATUS DETERMINATION (SECOND DEPT).

The Second Department determined defendant was eligible for youthful offender status because criminal possession of a weapon third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime (see CPL 720.10[3]). The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded (see CPL 1.20[41] …). Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter … for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Javon L., 2020 NY Slip Op 07094, Second Dept 11-25-20

 

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EVIDENCE OF A 1990 ROBBERY AND SEXUAL ASSAULT TO PROVE IDENTITY SHOULD NOT HAVE BEEN ADMITTED; THE SIMILARITIES WERE NOT STRONG ENOUGH (SECOND DEPT).

The Second Department, reversing defendant’s attempted rape conviction, determined the evidence of a 1990 robbery and sexual assault should not have been admitted as evidence of the identity of the perpetrator. But the burglary, robbery and sexual abuse convictions, apparently stemming from the same incident, were not disturbed:

… [T]he similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant’s identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual … . Accordingly, the Supreme Court erred in permitting the People to present evidence regarding the 1990 robbery and assault in order to establish the defendant’s identity … .

The error was harmless as to all of the charges except the attempted rape in the first degree since the proof of the defendant’s guilt, without reference to the erroneously admitted Molineux evidence, was overwhelming as to those other charges, and there was no reasonable possibility that the jury would have acquitted the defendant on those charges had it not been for the error … . Furthermore, the erroneous admission of the Molineux evidence did not deprive the defendant of a fair trial … . We reach a different conclusion with respect to the defendant’s conviction of attempted rape in the first degree. Because the evidence of the defendant’s guilt of that charge was not overwhelming, the error cannot be deemed harmless, and the defendant’s conviction of that charge must be vacated and a new trial ordered as to that charge … . People v Duncan, 2020 NY Slip Op 07090, Second Dept 11-25-20

 

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