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VOLUNTARY DISCONTINUANCES OF PRIOR FORECLOSURE ACTIONS AND THE RELATED CORRESPONDENCE DID NOT UNAMBIGUOUSLY DE-ACCELERATE THE DEBT; THEREFORE THE FORECLOSURE ACTION IS TIME-BARRED; TWO-JUSTICE DISSENT ARGUED THE CORRESPONDENCE DE-ACCELERATED THE DEBT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the foreclosure action was time-barred. The initial foreclosure action was in 2010. That action was discontinued and the mortgage was subsequently assigned three times. After a second discontinuance, the third foreclosure action was commenced in 2017. The majority concluded that the discontinuances and related correspondence did not de-accelerate the debt, so the statute of limitations kept running from the initial action in 2010. The dissenters argued the debt had been de-accelerated by correspondence with the defendant:

… [T]he voluntary discontinuance of the first two actions, without more, did not constitute an affirmative revocation of the initial acceleration of the debt … . That is particularly so because plaintiff’s predecessors in interest moved to discontinue each action due to title concerns, without addressing the prospect of revoking the acceleration and resuming installment payments … . * * *

[The plaintiffs’] letters do not indicate a clear and unambiguous return to an installment payment plan and, for all practical purposes, do not actually evidence any real intent to de-accelerate the loan. In effect, “plaintiff simply put defendant[s] on notice of its obligation to cure a . . . default and then promptly embarked on the notices required to initiate a [third] foreclosure action” … . In our view, these notices do not constitute affirmative actions to de-accelerate the mortgage … . U.S. Bank Natl. Assn. v Creative Encounters LLC, 2020 NY Slip Op 02844, Third Dept 5-14-20

 

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ALTHOUGH IT IS NOT SETTLED WHETHER THE RAPE SHIELD LAW APPLIES TO A CIVIL PROCEEDING, SUPREME COURT HAD THE AUTHORITY TO PROHIBIT THE QUESTIONING OF PLAINTIFF’S DAUGHTER ABOUT HER SEXUAL HISTORY TO PREVENT EMBARRASSMENT AND HARASSMENT IN THIS NEGLIGENT SUPERVISION CASE (THIRD DEPT).

The Third Department upheld Supreme Court’s protective order prohibiting plaintiff’s child from being questioned about her sexual history. The complaint alleged the child was raped during a sleep over at defendants’ home. The complaint alleged several theories of liability, including negligent supervision. Supreme Court held that the Rape Shield Law applied to this civil case. The Third Department determined it did not need to reach that issue, holding that the court had the authority to prohibit the testimony to protect the child from embarrassment:

… Supreme Court was required to balance plaintiff’s concern that the child’s sexual history is irrelevant, and that questions of this nature are nothing more than a form of intimidation and embarrassment, against defendants’ argument that the child had a motive to fabricate the allegations of the assault because of a purported pregnancy. The record reveals that Supreme Court undertook a balancing of these concerns.

We find that plaintiff met her burden of showing annoyance and embarrassment. The child’s sexual history, sexual conduct and pregnancies are not relevant or material to the elements of the causes of action for negligence, battery, intentional infliction of emotional distress or loss of services … . Moreover, it has been determined that there is limited value to testimony concerning the sexual past of a victim of a sexual assault; instead, it often serves only to harass the victim and confuse the jurors … . Lisa I. v Manikas, 2020 NY Slip Op 02846, Third Dept 5-14-20

 

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PROOF OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (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 evidence of defendants’ default was not in admissible form:

To establish its prima facie entitlement to summary judgment in a mortgage foreclosure action, a plaintiff must submit the mortgage, the unpaid note, and evidence of the mortgagor’s default … . A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form … .

Here, Ostermann [plaintiff’s vice president], in her affidavit, did not specifically state that she had personal knowledge of the default. Moreover, to the extent that her knowledge was based on her review of business records, she did not identify what records she relied on and she did not attach them to her affidavit. Thus, the plaintiff failed to submit evidence in admissible form to establish the defendants’ default … . Since the plaintiff failed to establish, prima facie, that the defendants had defaulted on the subject note, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answers, and for an order of reference … . Deutsche Bank Natl. Trust Co. v McGann, 2020 NY Slip Op 02765, Second Dept 5-13-20

 

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A DEFENSE WITNESS HELD OUT AS DISINTERESTED AND OBJECTIVE WAS IN FACT EMPLOYED BY THE DEFENDANTS; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the jury verdict in this personal injury case should have been granted. One of the issues in the trial was the identity of the party which left a pipe in a tunnel. Plaintiff alleged he was injured when he tripped over the pipe. Defendants presented a witness, Dudin, who testified the defendants were not responsible for leaving the pipe in the tunnel. Dudin was represented as a disinterested witness when, in fact, he was employed by the defendants:

Pursuant to CPLR 4404(a), a trial court may order a new trial “in the interest of justice.” “A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the record reveals that the defendants affirmatively represented to the jury that Dudin was a disinterested, objective witness, notwithstanding that he was employed by the defendants at the time of trial. During summation, the defendants’ counsel stated that Dudin was “with the construction manager,” and that he was “not on [the defendants’] payroll,” but rather was a representative of the DEP [Department of Environmental Protection]. Additionally, the defendants’ counsel stated that, “you heard from Mr. Dudin, who is with the DEP now, this is not [the defendants’] stuff” in the tunnel. Counsel specifically referred to Dudin as “an objective witness” who “has no dealings with [the defendants],” and stated that he was “there to help the [injured] plaintiff.” Under the circumstances, we find that the jury should have had the opportunity to consider Dudin’s status as an employee of the defendants in assessing his credibility and in determining whether this relationship biased or influenced the witness’s testimony … . D’Amato v WDF Dev., LLC, 2020 NY Slip Op 02761, Second Dept 5-13-20

 

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DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly tripped on an uneven sewer grate in a parking lot. The evidence did not demonstrate, prima facie, that the defect was trivial. Therefore the burden of proof on the summary judgment motion never shifted to plaintiff:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or per se rule that the condition must be of a certain height or depth in order to be actionable … . Physically small defects may be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . Bishop v Pennsylvania Ave. Mgt., LLC, 2020 NY Slip Op 02756, Second Dept 5-13-20

 

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THE CONCEPTS OF ‘OVERWHELMING EVIDENCE’ AND ‘HARMLESS ERROR’ DISCUSSED IN DEPTH; THE MAJORITY FOUND THE EVIDENCE OVERWHELMING AND THE ERROR HARMLESS; THE CONCURRENCE FOUND THE EVIDENCE WAS NOT OVERWHELMING BUT FOUND THE ERROR HARMLESS UNDER A DIFFERENT ANALYSIS; THE DISSENT FOUND THE EVIDENCE WAS NOT OVERWHELMING AND THE ERROR WAS NOT HARMLESS (THIRD DEPT).

The Third Department reached different conclusions about how the erroneous denial of defendant’s motion to suppress the cell site location data should be treated on appeal under a harmless error analysis. The majority and the concurrence applied different harmless error analyses but concluded the conviction should be affirmed. The dissent argued the error was not harmless requiring a new trial. The decision includes useful, comprehensive discussions of “overwhelming evidence” and “harmless error. “The dissent summarized the three positions as follows:

From the dissent:

In essence, the majority applies the longstanding New York test of first assessing whether the evidence adduced at trial was overwhelming in favor of conviction, concludes that it was, and therefore the admission of the cell phone location data was harmless since it could not have influenced the result of the trial. The concurrence disagrees with the finding that the evidence of guilt was overwhelming, but finds the error of admitting the cell phone location data nonetheless harmless; the concurrence maintains that, since its effect was to favor, or disfavor, the contentions of each side equally, this is one of the exceedingly rare cases where, despite the absence of overwhelming evidence of guilt, the admission of tainted evidence, however misguided, was, in the words of the leading Court of Appeals case of People v Crimmins (36 NY2d 230, 242 [1975]), nothing more than the “sheerest technicality.” Because I believe that the other evidence of defendant’s guilt was not overwhelming, and the effect of admitting the cell phone location data not necessarily neutral, I dissent and would reverse the judgment of conviction. People v Perez, 2020 NY Slip Op 02684, Third Dept 5-7-20

 

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THE NOTICES INFORMED DEFENDANTS THAT THE MORTGAGE PAYMENTS ACCELERATED ON JANUARY 21, 2011; THE FACT THAT NOTICES REITERATING THAT SAME ACCELERATION DATE WERE SENT AS LATE AS NOVEMBER 2013 DID NOT CHANGE THE OPERATIVE DATE; THE FORECLOSURE ACTION COMMENCED IN MARCH 2017 WAS TIME-BARRED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the mortgage payments were accelerated on January 21, 2011. The defendants were notified of the acceleration date in December 2010. Additional notices were sent to defendants as late as November 2013, but all the notices reiterated that January 21, 2011 was the acceleration date. The foreclosure action commenced in March 2017 was deemed time-barred:

The December 2010 notice stated that, on January 21, 2011, “the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” Between July 2012 and November 2013, five additional notices were sent to defendants, each reiterating that “[t]he acceleration date of January 21, 2011 . . . remains in effect.” * * *

… [T]he December 2010 notice states that, “[i]f the default is not cured on or before January 21, 2011, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” This language, particularly the underlined language in the notice, indicates the date on which the debt was to be accelerated. A plain reading of the notice does not provide any suggestion that, except for curing the default, the outstanding debt would not be accelerated on that date. As such, the notice clearly and unequivocally indicates that the outstanding mortgage payments would be accelerated on January 21, 2011 … . The reiteration of this acceleration date in five subsequent letters only further evinces the acceleration date of January 21, 2011 … . MTGLQ Invs., LLP v Lunder, 2020 NY Slip Op 02690, Third Dept 5-7-20

 

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ALTHOUGH THERE WAS EVIDENCE DEFENDANT WAS SELLING TICKETS TO A SPORTING EVENT OUTSIDE THE ARENA, THE EVIDENCE DEFENDANT KNEW THE TICKETS WERE FORGED WAS LEGALLY INSUFFICIENT; DEFENDANT’S FLIGHT WHEN HE SAW THE POLICE WAS EQUIVOCAL (FIRST DEPT).

The First Department, reversing defendant’s convictions of criminal possession of a forged instrument, determined the evidence that defendant knew the Rangers tickets were forged was legally insufficient. The defendant briefly held an envelope containing the tickets and fled when he say the police:

Defendant approached Rangers fans outside of Madison Square Garden before a game, and at one point said “tickets, tickets.” He was on a cell phone call for a few seconds with an unspecified caller, the substance of which was not overheard. Defendant then met an unapprehended man, who gave defendant an envelope, which he immediately passed to a codefendant. The envelope, which the police recovered from the codefendant, contained a birthday card and the four forged Rangers tickets.

The evidence suggested that defendant sought to buy or sell tickets, but it did not show that he knew the tickets in question were forged. Even if the evidence established that defendant knowingly acted in concert with one or more other persons to sell tickets, in the circumstances presented this failed to support an inference that he knew he was selling forged tickets. His momentary possession of the envelope as he took it from one man and handed it to another, without looking inside or otherwise seeing the tickets, and the lack of any evidence of the codefendant’s conduct, besides his walking with defendant and receiving the tickets, does not suffice to establish that defendant knew the tickets were forged, either personally or while acting in concert with the codefendant.

Defendant’s flight from a plainclothes officer, whom defendant may have recognized, was too equivocal to prove that he knew the tickets inside the envelope were forged. There are other reasonable explanations for defendant’s flight, such as his potential awareness that it is unlawful to sell tickets, even if genuine, in the vicinity of the Garden … . People v Johnson, 2020 NY Slip Op 02708, First Dept 5-7-20

 

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ALTHOUGH DEFENDANT’S SUPPRESSION MOTION RELATED TO A THEFT ON OCTOBER 3 AND DEFENDANT PLED GUILTY TO A DIFFERENT THEFT ON OCTOBER 1 IN SATISFACTION OF BOTH, DEFENDANT WAS ENTITLED TO APPELLATE REVIEW OF HIS SUPPRESSION MOTION; THE APPELLATE DIVISION’S DENIAL OF REVIEW REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant was entitled to appellate review of the denial of his suppression motion even though the suppression motion did not relate to the offense to which defendant pled guilty. The defendant was charged with two thefts from the same residence on different days, a laptop computer taken on October 1 and jewelry taken on October 3. The police stopped the defendant on the street on October 3 and seized the jewelry. The suppression hearing related to that street stop. The defendant pled guilty to the theft of the computer and the jewelry-theft was satisfied by the plea. The Fourth Department held defendant was not entitled to appellate review of the jewelry-related suppression motion because defendant pled to the computer-theft. The case was sent back for review of the denial of the suppression motion:

Defendant was charged by indictment with two counts of burglary in the second degree … . The first count related to the laptop computer, taken from a dwelling on October 1, 2014; the second count related to the jewelry, which was taken from the same dwelling on October 3, 2014, the day of the arrest.

Defendant moved to suppress the jewelry, contending that his detention and the seizure of the jewelry violated his right to freedom from unreasonable searches and seizures …. Following a suppression hearing, with testimony from two of the police officers present at the arrest, Supreme Court denied defendant’s motion, concluding that the police had “reasonable suspicion that a crime had been committed and that the defendant was the perpetrator.”

Defendant, a predicate felony offender who was facing a maximum sentence of 30 years in prison if convicted of both counts of burglary, pleaded guilty to one count of burglary in the second degree, in satisfaction of the entire indictment. … [D]efendant pleaded guilty to the October 1 burglary, as charged in the count pertaining to the theft of the laptop computer, in satisfaction of the count charging the October 3 burglary of jewelry, which was the subject of his motion to suppress.  * * *

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” … . * * *

A defendant who pleads guilty to one count will invariably take into consideration that other counts are satisfied by the plea. Importantly, a count satisfied by a guilty plea bears the double jeopardy consequences of a judgment of conviction. The judgment in this case prevents the People from prosecuting defendant again for the October 3, 2014 burglary, even though defendant did not plead to that count … . People v Holz, 2020 NY Slip Op 02682, CtApp 5-7-20

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 13O4 AND A CONDITION PRECEDENT IN THE MORTGAGE IN THIS FORECLOSURE ACTION; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and a condition precedent in the mortgage and therefore was not entitled to summary judgment in this foreclosure action:

Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 … . Contrary to the plaintiff’s contention, its submission of an affidavit of an employee of the loan servicer was not sufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304. The affiant did not aver that he had personal knowledge of the purported mailings, that he was familiar with the mailing practices and procedures of the plaintiff, which allegedly sent the notice, or that the plaintiff’s records had been incorporated into the records of the loan servicer and were routinely relied upon by the loan servicer in its business … . Further, the plaintiff’s submission of an affidavit of its own employee was insufficient to establish the plaintiff’s strict compliance with RPAPL 1304, since that employee had no personal knowledge of the purported mailings, and his unsubstantiated and conclusory statements failed to establish that the notice was mailed to the defendant not only by certified or registered mail, but also by first-class mail … . Although the plaintiff submitted tracking information from the United States Postal Service for certified mailings of the notice, the redacted proof of first-class mailing did not contain any information linking a first-class mailing to the RPAPL 1304 notice, and thus, failed to establish that the notice was mailed by first-class mail … . Likewise, the plaintiff’s submission of a “Proof of Filing” statement pursuant to RPAPL 1306 contained no information indicating that the mailing was done by both registered or certified mail and first-class mail as required by RPAPL 1304 … .

The plaintiff similarly failed to establish, prima facie, that it mailed a notice of default to the defendant by first-class mail as required by the terms of the mortgage as a condition precedent to acceleration of the loan … . JPMorgan Chase Bank, N.A. v Nellis, 2020 NY Slip Op 02621, Second Dept 5-6-20

Similar issues and result in Deutsche Bank Natl. Trust Co. v Nelson, 2020 NY Slip Op 02604, Second Dept 5-6-20

 

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