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PLAINTIFF BANK NEVER REVOKED THE ACCELERATION OF THE MORTGAGE DEBT; FIFTH FORECLOSURE ACTION TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no evidence plaintiff bank revoked the acceleration of the mortgage debt and the foreclosure action was therefore time-barred:

Plaintiff Wells Fargo Bank failed to affirmatively revoke the acceleration of defendant’s mortgage debt, as mere voluntary discontinuance of a foreclosure action is insufficient, in itself, to constitute an affirmative act of revocation … . Wells Fargo admitted that its primary reason for revoking acceleration of the mortgage debt was to avoid the statute of limitations bar, and it proceeded to collect on the accelerated loan amount in a fifth foreclosure action filed shortly after it made its motion to revoke acceleration … .

Moreover, Wells Fargo’s fifth foreclosure action, commenced on or around December 11, 2017, is time-barred, as Wells Fargo had accelerated the mortgage debt when it commenced its second foreclosure action on September 16, 2009 (CPLR 213[4] …). The fact that the prior foreclosure actions were dismissed does not undo Wells Fargo’s act of accelerating the mortgage debt. Wells Fargo Bank, N.A. v Ferrato, 2020 NY Slip Op 03067, First Dept 5-28-20

 

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THERE WAS A QUESTION OF FACT WHETHER WATER ON THE FLOOR RESULTED FROM A RECURRING LEAK WHICH SHOULD HAVE BEEN NOTICED BY THE NYC HOUSING AUTHORITY; THERE WAS NO EVIDENCE THE ROOF-REPAIR CONTRACTORS HIRED BY THE HOUSING AUTHORITY LAUNCHED AN INSTRUMENT OF HARM; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE HOUSING AUTHORITY IN THIS SLIP AND FALL CASE BUT WAS PROPERLY AWARDED TO THE CONTRACTORS (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to defendant NYC Housing Authority (NYCHA) in this slip and fall case. However, summary judgment was properly granted to the roof-repair contractors hired by the NYCHA to ensure the roof was watertight. There was no evidence the contractors launched an instrument of harm causing the accumulation of water on the floor which allegedly caused plaintiff’s fall. But there was evidence the water on the floor was caused by a recurring leak which should have been noticed by the NYCHA:

… [T]he Ruiz [eyewitness] affidavit established that leaks had existed in the ceiling for a long period of time before the accident, and that water from the ceiling had caused the accident. The photographs of the ceiling show discoloration and peeling paint that could be suggestive of a longstanding, “visible and apparent” condition — dripping water – that NYCHA’s practices and procedures unreasonably failed to observe … . May’s testimony that had he seen a leak he would have placed a bucket underneath it and notified his supervisor fails to account for why he or anybody at NYCHA did not notice the obvious condition of the ceiling, nor does the evidence that there were no complaints regarding leaks on the 20th floor explain why NYCHA’s maintenance staff did not notice it.

… [T]he fact that NYCHA completed the roof replacement before the accident does not absolve it of liability as a landowner. NYCHA failed to establish, through an expert affidavit or otherwise, that any condition that may have caused the leaks discussed in the Ruiz affidavit was actually addressed by the project. However, because [defendants] Liro and Corbex are not landowners but rather mere contractors hired by NYCHA to replace the roofs, they owed no direct duty to plaintiff, but could only be liable to the extent that they launched an instrument of harm, that plaintiff detrimentally relied on their performance of their respective contracts with NYCHA, or that they entirely replaced NYCHA’s obligation to maintain the premises in a safe condition (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). There is no evidence to suggest that either of those three conditions existed here. Williams v New York City Hous. Auth., 2020 NY Slip Op 03063, First Dept 5-28-20

 

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DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO DEMONSTRATE THE ESPINAL EXCEPTIONS DID NOT APPLY IN THIS SLIP AND FALL CASE BECAUSE PLAINTIFF DID NOT ALLEGE ANY OF THE EXCEPTIONS APPLIED; THEREFORE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE GROUND PLAINTIFF WAS NOT A PARTY TO THE CONTRACT (SECOND DEPT).

The Second Department, in this slip and fall case, determined defendant snow-removal contractor, Con-Kel, did not need to demonstrate the inapplicability of any Espinal exceptions in its motion for summary judgment because plaintiff did not allege any of the exceptions applied:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Where the pleadings do not allege facts which would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Here, Con-Kel demonstrated its prima facie entitlement to judgment as a matter of law by coming forward with evidence that the plaintiff was not a party to its snow removal contract … . Arnone v Morton’s of Chicago/Great Neck, LLC, 2020 NY Slip Op 02997, Second Dept 5-27-20

 

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MUNICIPAL EMERGENCY PERSONNEL WERE ENGAGED IN A GOVERNMENTAL FUNCTION RESPONDING TO PLAINTIFFS’ 911 CALL AND THERE WAS NO SPECIAL RELATIONSHIP WITH THE PLAINTIFFS; MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE, WRONGFUL DEATH ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the municipal police and ambulance defendants’ motion for summary judgment was properly granted in this negligence, wrongful death action. Plaintiff’s decedent died after his wife called 911 and the police and ambulance personnel were unable to revive him. The Second Department found that the municipal defendants were engaged in a governmental function and there was no special relationship between the plaintiffs and the municipal defendants:

… [T]he defendants were engaged in a governmental function as a provider of emergency medical services pursuant to a municipal emergency response 911 system, such that the defendants could not be held liable to the plaintiff unless they owed her a special duty … . One way to establish the existence of a special duty is by showing that the defendant assumed a “special relationship” with the plaintiff beyond the duty that is owed to the public generally … . “The plaintiff has the heavy burden of establishing the existence of a special relationship by proving all of the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) [that] party’s justifiable reliance on the municipality’s affirmative undertaking” … . Of the four factors, the “justifiable reliance” element is “critical” because it “provides the essential causative link between the special duty assumed by the municipality and the alleged injury” … . …

There is nothing in the record to suggest that Officer Kelly or any of the defendants’ agents lulled the plaintiff into a false sense of security, or induced her to forego other avenues to transport her husband to the hospital, and therefore placed the plaintiff in a worse position than she would have been had the defendants never assumed the duty … . Marks-Barcia v Village of Sleepy Hollow Ambulance Corps, 2020 NY Slip Op 03007, Second Dept 5-27-20

 

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DEFENDANT FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE BROKEN CURB WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the broken curb which allegedly caused plaintiff’s slip and fall:

… [T]he defendants failed to meet this burden. In support of their motion, among other things, they proffered the affidavit of the director of engineering of Mount Vernon Hospital who averred that there were no maintenance or complaint records for approximately three years preceding the accident, that he would inspect the premises approximately once a month, and that “the sidewalk and curbing is repaired and replaced on an as needed basis.” The defendants did not proffer any evidence demonstrating when the area at issue was last inspected prior to the plaintiff’s alleged accident … . Moreover, the defendants failed to make a prima facie showing that the alleged defect that caused the plaintiff to fall was not visible and apparent, and would not have been noticed upon a reasonable inspection of the area where the plaintiff alleged she tripped and fell … . Malloy v Montefiore Med. Ctr., 2020 NY Slip Op 02921, Second Dept 5-20-20

 

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ALTHOUGH THE SEARCH WARRANT WAS IMPROPERLY ADDRESSED TO THE SPECIAL OPERATIONS GROUP, WHICH INCLUDED PEACE OFFICERS AS OPPOSED TO POLICE OFFICERS, THE WARRANT WAS PROPERLY ADDRESSED TO POLICE OFFICERS AS WELL; THE PARTICIPATION OF PEACE OFFICERS IN THE SEARCH WAS LIMITED AND DID NOT INVALIDATE THE SEARCH (SECOND DEPT).

The Second Department determined the fact that corrections officers (i.e., peace officers) participated in a search, along with police officers, did not invalidate the search:

There is no dispute that the search warrant was properly addressed to police officers of the City of Middletown Police Department and police officers of the New York State Police (see CPL 1.20[34][a], [d]). Accordingly, the search warrant complied with the statutory requirement that it “be addressed to a police officer whose geographical area of employment embraces or is embraced or partially embraced by the county of issuance” (CPL 690.25[1]).

The defendant is correct that the search warrant was improperly addressed to the Special Operations Group, since it includes members who are not police officers within the meaning of the statute (see CPL 690.25[1]; see also CPL 2.10[25]). However, “[s]earch warrants should be tested in a commonsense and realistic manner with minor omissions and inaccuracies not affecting an otherwise valid warrant”  … . * * *

Here, the record of the suppression hearing demonstrates that the Special Operations Group played a limited role in the execution of the warrant. Members of that group merely secured entry to the residence for the benefit of the police officers who actually conducted the search and recovered the physical evidence at issue. People v Ward, 2020 NY Slip Op 02943, Second Dept 5-20-20

 

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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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