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CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ALLOWED IN EVIDENCE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the co-defendant’s redacted admission should not have been admitted in evidence:

… [W]e agree with the defendant that, under the instant circumstances, the Supreme Court’s admission of codefendant Jason Villanueva’s redacted statement to the police violated the rule articulated in Bruton v United States (391 US 123), because the subject redaction would have caused the jurors to “realize that the confession refers specifically to the defendant” or to one of the other nonconfessing codefendants … . In addition, the error was not harmless. “[I]t cannot be said that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … , given that the statement was inconsistent with the defendant’s justification defense, and the court failed to give the jurors a proper limiting instruction to only consider the statement against Villanueva. People v Casares, 2020 NY Slip Op 05520, Second Dept 10-7-20

 

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THE REFEREE RELIED ON HEARSAY TO DETERMINE THE AMOUNT OWED IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence relied upon by the referee to determine the amount owed to plaintiff bank in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule. The bank’s motion for summary judgment should not have been granted:

With respect to the amount due to the plaintiff, the referee based his findings on an affidavit of Jillian Thrasher, a vice president of Ocwen Loan Servicing, LLC (hereinafter Ocwen), the servicer of the subject loan. …

“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” … . Here, Thrasher’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because she failed to attest that she was personally familiar with the record-keeping practices and procedures of her employer, Ocwen, the entity that generated the subject business records. Accordingly, she failed to demonstrate that the records relied upon in her affidavit were admissible under the business records exception to the hearsay rule … . Thus, Thrasher’s affidavit, upon which the referee relied, “constituted inadmissible hearsay and lacked probative value” on the issue of the amount due and owing to the plaintiff, including the amount of interest due for the relevant period … , and the Supreme Court erred in confirming the report. The error in relying on hearsay evidence was not harmless, as the referee’s determination is not substantially supported by other evidence in the record … . IndyMac Fed. Bank, FSB v Vantassell, 2020 NY Slip Op 05495, Second Dept 10-7-20

 

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THE BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF STANDING OR COMPLIANCE WITHE THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANKS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence of standing to bring the foreclosure action and compliance with the RPAPL 1304 notice requirements:

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the employee of the plaintiff’s loan servicer stated in her affidavit, which was submitted by the plaintiff in support of its motion, that the plaintiff was the holder of the note, she never stated that the plaintiff was the holder of the note at the time the action was commenced … . Further, the plaintiff failed to establish that the note was attached to the complaint at the time of the commencement of the action … . …

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because the employee of the plaintiff’s loan servicer, in her affidavit, failed to assert personal knowledge of the purported mailing or make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures in order to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Bank of Am., N.A. v Palacio, 2020 NY Slip Op 05480, Second Dept 10-7-20

 

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THERE WAS A QUESTION OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE OF A RECURRING ICY CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive knowledge of a recurring icy condition where plaintiff allegedly slipped and fell. Plaintiff slipped after leaving a tenant’s apartment. The tenant testified at a deposition:

… [P]laintiff submitted, inter alia, the deposition testimony of the tenant that she had treated on the day of the incident. The tenant testified that, “basically[,] what happens is there’s a lot of runoff from the ground over here. When the snow melts the whole area gets flooded and then it freezes, and then you have a solid sheet of ice pretty much over these last few blocks of the sidewalk and then down in the end, right at the end where the parking lot meets the sidewalk. I’ve actually contacted management many times in regards to that issue.” The tenant further testified that, when he contacted the property manager on such occasions prior to the incident, he was told that there was nothing that could be done because “the snow melts, thaws and freezes, and there’s nothing [*2]they can do about water.” He also noted that he had been living at the property for 11 years, and no steps had been taken during that time to eliminate water from pooling on the sidewalk. Monnin v Clover Group, Inc., 2020 NY Slip Op 05325, Fourth Dept 10-2-20

 

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THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the convictions related to statement which should have been suppressed, determined the police did not have reasonable suspicion to justify a traffic stop and did not have probable to handcuff the defendant, a de facto arrest, when he got out of the car. Therefore the statements which led to the search and seizure of cocaine, as well as the seized cocaine, should have been suppressed:

Inasmuch as the officer conducting the surveillance and directing the stop of defendant “did not see what the defendant and [the alleged buyer] exchanged, could not see if one of the [participants] gave the other something in return for something else, and did not see money pass between the two [individuals],” we conclude that the officers detaining defendant lacked reasonable suspicion to do so … .

… Although the use of handcuffs does not automatically transform a defendant’s detention into a de facto arrest … , such use must be justified by some additional circumstances, such as a threat of evasive conduct … . …

… [T]here was no testimony that the officer who handcuffed defendant “reasonably suspect[ed] that he [was] in danger of physical injury by virtue of [defendant] being armed” … . “[T]he test for determining whether a defendant is in custody or has been subjected to a de facto arrest is ‘what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position’ ” … . People v Hernandez, 2020 NY Slip Op 05321, Fourth Dept 9-30-20

 

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GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT THE STRANGULATION COUNT DESPITE THE ABSENCE OF A DEFINITION OF THE “STUPOR” ELEMENT OF THE OFFENSE (FOURTH DEPT).

The Fourth Department, reversing County Court on a People’s appeal and reinstating the strangulation count, determined the evidence before the grand jury was sufficient to charge strangulation. County Court had reduced the charge to criminal obstruction of breathing or blood circulation. County Court ruled the People had not presented evidence sufficient to support the theory the strangulation caused “stupor” citing the People’s failure to define the term:

In order to sustain the charge of strangulation in the second degree against defendant, the People were required to present to the grand jury legally sufficient evidence of the following three elements: (1) that defendant applied pressure on the throat or neck of the alleged victim; (2) that defendant did so with the intent to impede the normal breathing or circulation of the blood of the alleged victim; and (3) that defendant thereby caused stupor, loss of consciousness for any period of time, or any other physical injury or impairment to the alleged victim … .

… [T]he prosecutor’s instructions to the grand jury comported with the statute and mirrored the pattern criminal jury instructions … , and we conclude that the failure of the prosecutor to offer a definition of the term “stupor” did not impair the integrity of the grand jury proceedings or potentially prejudice defendant … .

… [T]he alleged victim testified before the grand jury that defendant “put both of his hands around [her] neck and choked [her] until [she] could barely breathe anymore” and “was starting to lose consciousness.” She was “pushed up against the wall and the door” and felt “[v]ery light-headed and kind of like—like there was a buzzing in [her] head and everything was starting to turn purple in [her] vision before—by the time [the alleged victim] got him to let go.”  People v Ruvalcaba, 2020 NY Slip Op 05354, Fourth Dept 10-2-20

 

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INSUFFICIENT EVIDENCE DEFENDANT HAD CONSTRUCTIVE NOTICE OF A LOOSE PANEL ON A SELF CHECK OUT MACHINE IN DEFENDANT’S STORE; THE PANEL ALLEGEDLY FELL OFF AND INJURED PLAINTIFF’S FOOT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s (BJ’s) motion for summary judgment in this personal injury case should have been granted. There was insufficient evidence BJ’s had constructive notice that a metal panel on a self-check-out machine could detach and fall off. It was alleged plaintiff’s foot was injured by the panel:

It is well established that, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . Here, defendants’ submissions on the motions established that no one, including plaintiff, observed any defect in the machine or the metal panel that injured plaintiff … . Indeed, defendants’ evidence demonstrated that the self-check-out machine was inspected and tested on the morning of the incident, that an employee was stationed directly in front of the machine prior to the incident and observed nothing abnormal about the machine, and that plaintiff herself had observed nothing abnormal about the machine while standing in line and waiting to use it. Although the deposition testimony of one of BJ’s employees referenced that the employee had previously “adjust[ed]” a panel on an unidentified self-check-out machine at some time, nothing in that testimony indicated that BJ’s had notice of a defective or dangerous condition of the machine that injured plaintiff. Ginsberg v BJ’s Wholesale Club, Inc., 2020 NY Slip Op 05350, Fourth Dept 10-2-20

 

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EVIDENCE DID NOT ESTABLISH AS A MATTER OF LAW THAT THE INSURED’S WATER-DAMAGE CLAIM WAS FRAUDULENTLY INFLATED; INSURER WAS NOT ENTITLED TO SUMMARY JUDGMENT DISCLAIMING COVERAGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant insurer (Allegany) did not present sufficient evidence an inflated water-damage claim to warrant disclaiming coverage. The insurer’s summary judgment motion should not have been granted:

Allegany failed to meet its initial burden on its motion of establishing as a matter of law that the claim was inflated … . A policy may be voided if the insured ” ‘willfully and fraudulently placed in the proofs of loss a statement of property lost which [the insured] did not possess, or has placed a false and fraudulent value upon the articles which [the insured] did own’ ” … . “Incorrect information is not necessarily tantamount to fraud or material misrepresentation as the insurer must tender ‘proof of intent to defraud—a necessary element to the defense’ ” … . ” ‘[U]nintentional fraud or false swearing or the statement of any opinion mistakenly held[, however,] are not grounds for vitiating a policy’ ” … .

… [A]lthough Allegany’s submissions in support of its motion demonstrate a disparity between the estimates of plaintiff’s contractor and Allegany’s assessor of the amount of damage and loss … , the submissions fail to establish fraudulent intent on the part of plaintiff … . Plaintiff’s proof of loss statement did not include duplicative items, unincurred expenses, or substantial sums of money that were unaccounted for … , and the disparity between the damage estimate of plaintiff’s contractor and the estimate of Allegany’s assessor is not “so grossly excessive as to constitute false swearing and misrepresentation” … . Magnano v Allegany Co-Op Ins. Co., 2020 NY Slip Op 05339, Fourth Dept 10-2-20

 

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ANONYMOUS 911 CALL JUSTIFIED TRAFFIC STOP; DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined an anonymous 911 call provided reasonable suspicion for a traffic stop, officer safety warranted handcuffing the defendant and seeing a rifle in the car provided probable cause for arrest. The dissent argued the anonymous 911 call did not justify the traffic stop:

… “[P]olice stops of automobiles in New York State are legal ‘when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ ” … . The evidence at the suppression hearing established that police officers were dispatched based on a 911 call reporting a group of people at a specific location, one of whom had been observed getting into a van while possessing “a long gun.” The dispatch provided the license plate number of a van in which the group had driven away from the location where they had been seen by the 911 caller. One or two minutes after the dispatch, one of the responding officers located the van in the area. The officer confirmed that the van’s license plate number matched the one provided in the dispatch, and he initiated a traffic stop. Contrary to defendant’s assertion, “the totality of the information known to the police at the time of the stop of [the van] ‘supported a reasonable suspicion of criminal activity . . . [, i.e.,] that quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand’ ” … . In particular, we conclude that the 911 call as relayed in the dispatch “contained sufficient information about defendant[‘s] unlawful possession of a weapon to create reasonable suspicion” justifying the stop of the van … . People v Walls, 2020 NY Slip Op 05337, Fourth Dept 10-2-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS THE CLAIM ASSOCIATED WITH TOOTH NUMBER 28 IN THIS DENTAL MALPRACTICE ACTION; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THAT CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, noted that the plaintiff’s expert’s affidavit did not address the plaintiff’s dental malpractice claim with respect to one tooth (tooth number 28). Therefore defendant’s motion for summary judgment should have been granted on that claim:

Even assuming, as defendant claims, that plaintiff would still have had to undergo future dental work had these six teeth been saved, and that any disfigurement was not fairly attributable to defendant because plaintiff opted to have another dentist install her dentures, these facts do not negate the primary injury claimed by plaintiff — the unnecessary loss of these teeth. It is immaterial that plaintiff’s expert did not indicate that he or she had reviewed plaintiff or her husband’s deposition testimony, as review of these documents was not necessary to make an informed determination about the appropriateness of treatment. * * *

However, defendant’s motion for summary judgment should have been granted insofar as plaintiff’s claims are directed at tooth number 28, because plaintiff’s expert failed to raise an issue of fact regarding a departure of care with respect to this tooth. Castro v Yakobashvilli, 2020 NY Slip Op 05281, First Dept 10-1-20

 

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