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BANK DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT OR COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS; 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 the bank’s (Chase’s) motion for summary judgment in this foreclosure action should not have been granted, The court held: (1) the conclusory affidavit submitted by the bank  to prove defendant’s default had no probative value, the business record itself should have been provided; (2) compliance with the mailing provisions of RPAPL 1304 was not proven by the bank; (3) failure to comply with the notice provisions of RPAPL 1304 can be raised as a defense at any time; and (4) by not raising the failure to provide the notice required by the mortgage in the answer or a motion to amend the answer, the defendant waived that defense:

Here, the affidavit of Mimoza Petreska, a vice president of Chase, submitted in support of Chase’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, was insufficient to establish the defendant’s default in payment under the note … . The only business record annexed to Petreska’s affidavit with regard to the default was a copy of the notice of default dated May 15, 2012, which merely stated, in conclusory fashion, that the defendant’s loan was in default. Conclusory affidavits lacking a factual basis are without evidentiary value … . Moreover, “[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” … . JPMorgan Chase Bank, N.A. v Akanda, 2019 NY Slip Op 08180, Second Dept 11-13-19

 

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EXPERT’S OPINION THAT DEFENDANT’S IMPROPER INSTALLATION OF A SIDEWALK/MANHOLE CAUSED THE SIDEWALK HEIGHT DIFFERENTIAL IN THIS SLIP AND FALL CASE WAS NOT SUPPORTED BY EVIDENCE IN THE RECORD; THE DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court. determined the motion to set aside the verdict in this slip and fall case should have been granted. Although plaintiff’s expert was properly qualified, his opinion that defendant’s improper installation of the sidewalk/manhole caused the sidewalk height-differential over which plaintiff tripped and fell was not supported by evidence in the record:

… [T]he expert reached his conclusion as to the defendant’s negligence by assuming material facts not supported by the evidence and by guessing and speculating in drawing that conclusion … . For example, the expert testified to having no knowledge of when the sidewalk was constructed, when the manhole had been installed, or the weight and inside dimensions of the manhole structure. Yet, he opined that the defendant was responsible for the settling of the sidewalk flag and manhole due to improper backfilling, simply because the manhole belonged to the defendant at the time of the plaintiff’s fall.

Contrary to the plaintiff’s contention, absent the expert’s assumptive and speculative testimony, there was no evidence of the defendant’s negligence. ” Ippolito v Consolidated Edison of N.Y., Inc., 2019 NY Slip Op 08179, Second Dept 11-13-19

 

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SEIZURE OF DEFENDANT WAS BASED UPON AN ANONYMOUS TIP, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the relevant convictions, determined the police officer effectively seized defendant by blocking defendant’s car based upon an anonymous tip. The evidence seized from the car should have been suppressed:

The conviction of criminal possession of a weapon in the second degree arises from a police encounter during which an officer received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress both the tangible property seized, i.e., the weapon and marihuana found in the vehicle, and the statements defendant made to the police at the time of his arrest … . Based on the anonymous tip and defendant’s otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach the vehicle and make a common-law inquiry of its occupants ,,, . The officer did not make any “confirmatory observations” of the criminal behavior reported by the 911 caller … and therefore did not have “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” to justify the seizure … . People v Williams, 2019 NY Slip Op 08048, Fourth Dept 11-8-19

 

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ALLOWING LOSS PREVENTION OFFICERS TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO MAY HAVE BEEN ERROR BUT WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defense counsel’s failure to object to testimony of loss prevention officers identifying defendant in a surveillance video was not demonstrated to amount to ineffective assistance:

Although we agree with defendant that there is no basis in the record to conclude that the loss prevention officers who gave testimony identifying defendant as an individual depicted in the surveillance video were more likely to correctly identify defendant from the video than the jury … , we further conclude that defendant failed to “demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming[]” in failing to object to the admission of that testimony … . People v Hines, 2019 NY Slip Op 08032, Fourth Dept 11-8-19

 

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DEFENDANT DRIVER STRUCK A DISABLED CAR WHICH WAS SIDEWAYS IN THE LEFT LANE OF A HIGHWAY; THE CAR WAS BLACK AND THE ACCIDENT HAPPENED AT NIGHT IN A STEADY RAIN; DEFENDANT DRIVER CLAIMED TO BE GOING THE SPEED LIMIT, 65 MPH; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE EMERGENCY DOCTRINE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined defendants’ (Grice defendants’) motion for summary judgment in this traffic accident case was properly  denied. Defendant driver, who allegedly was travelling at the speed limit, 65 mph,  struck a disabled car which was sideways in the left lane of a highway. The car was black and the accident happened at night when it was raining. Defendants argued the emergency doctrine applied:

Contrary to the Grice defendants’ contention, their submissions failed to establish as a matter of law that defendant was confronted with a sudden and unexpected emergency situation to which he did not contribute. Although the accident occurred at night and the disabled vehicle was black and did not have its headlights on, the subject area of the highway was not curved and instead was straight and level with no permanent view obstructions or roadway defects to prevent defendant from perceiving the disabled vehicle. In addition, defendant testified at his deposition that he could see the “standard distance” with his headlights illuminating the roadway, yet he was unable to provide a reason why he did not observe the disabled vehicle prior to impact … . The fact that the disabled vehicle was positioned directly ahead of defendant on such an area of the highway with the headlights of defendant’s vehicle illuminating the roadway, “considered in light of [defendant’s] conceded failure to see anything prior to the impact, and his failure to take any steps to avoid the collision . . . , calls into question [his] testimony concerning the speed of his vehicle and his attentiveness as he drove” … . Moreover, inasmuch as the Grice defendants’ submissions established that the subject area of the highway was not well lit, that it was raining steadily rather than merely precipitating lightly, and that the highway was wet, we conclude that there is an issue of fact whether defendant, who testified that he was driving at the posted speed limit of 65 miles per hour, was nonetheless operating the vehicle at a speed greater than was reasonable and prudent under the conditions … . “If [a trier of fact] determines that [defendant’s] speed was unreasonable under the existing weather and road conditions, [the trier of fact] could also conclude that [defendant’s] own unreasonable speed was what deprived him of sufficient time to avoid the collision, thereby preventing him from escaping liability under the emergency doctrine” … . White v Connors, 2019 NY Slip Op 08017, Fourth Dept 11-8-19

 

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DEFENDANT IN THIS FORECLOSURE ACTION PRESENTED SUFFICIENT EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT TO WARRANT A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurring memorandum, determined that defendant made a sufficient showing to warrant a hearing on whether she was served with the summons and complaint in this foreclosure action:

Although the defendant did not deny having actual notice of the action, “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” … . “Service is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction [when there has not been compliance with] prescribed conditions of service” … . * * *

The defendant rebutted the process server’s affidavit of service through her specific and detailed affidavit, in which she averred that “[t]he [a]ffidavit of service falsely states that a copy of the Summons and Complaint was affixed to my door.” The defendant’s affidavit set out in great detail that the defendant was at home each time that the process server purportedly attempted service, as she was recuperating from a kidney transplant. The defendant averred that April 3, 2009, which happened to be her birthday, was a Friday, and that as an observant Jew she did not leave her home. The defendant submitted a Sabbath calendar printout showing that the sun did not set until 8:04 p.m. on April 4, 2009, approximately one hour after the process server purportedly affixed the summons and complaint to her door. The defendant averred that she never heard anyone knock at her door or ring her doorbell and that, despite various medical problems, she has no issues with her hearing. The defendant averred that her daughter came to pick her up for dinner at 8:30 p.m. on April 4, 2009, and that upon leaving her home, she did not see any documents affixed to her door. The foregoing detailed averments were sufficient to rebut the process server’s affidavit and to warrant a hearing on the issue of whether service was properly made … . HSBC Bank USA, N.A. v Assouline, 2019 NY Slip Op 07891, Second Dept 11-6-19

 

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EVIDENCE DEFENDANT HAD BEEN ACCUSED OF FRAUDULENTLY PRACTICING DENTISTRY IN THE PAST WAS NOT RELEVANT TO THE INSTANT PROCEEDING ALLEGING THE UNLICENSED PRACTICE OF DENTISTRY; THE PREJUDICIAL EFFECT WAS EXACERBATED BY REFERENCES TO THE ALLEGED FRAUD BY THE PROSECUTOR IN SUMMATION AND BY THE JUDGE IN THE INSTRUCTIONS TO THE JURY; DEFENDANT’S CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the probative value of evidence submitted to the jury was outweighed by its prejudicial effect. Defendant was charged under the Education Law with practicing dentistry without a license. Defendant alleged he was legally acting as a clinical director in a dental office. The jury was presented with evidence indicating defendant had been previously accused of practicing dentistry fraudulently:

Evidence that the defendant voluntarily surrendered his license to practice dentistry in 2000 was properly admitted to show that the defendant was unlicensed and was aware that he was unlicensed. However, the evidence submitted to the jury, which consisted of the defendant’s “application to surrender license,” stated not only that he was voluntarily surrendering his license, but also that he was doing so because he was “under investigation for allegations that [he] practiced the profession of dentistry fraudulently, within the purview and meaning of New York Education Law section 6509(2), and committed unprofessional conduct by engaging in conduct in the practice of the profession of dentistry evidencing moral unfitness to practice.” During summation, the prosecutor argued that the defendant had surrendered his license because he “had practiced the profession of dentistry fraudulently.” Thereafter, during the Supreme Court’s instructions to the jury, the court instructed the jurors that “there was evidence in the case that on another occasion, the defendant engaged in criminal conduct and was convicted of a crime,” which was “offered as evidence for [the jurors’] consideration on the questions of whether those facts are inextricably interwoven with the crimes charged, if [they] find the evidence believable, [they] may consider it for that limited purpose and for none other.”

The references to fraud and moral turpitude were not relevant to the issue of whether the defendant was unlicensed and was aware that he was unlicensed. Under the circumstances, any probative value of the evidence of the prior fraud was outweighed by its prejudicial effect … .  People v Hollander, 2019 NY Slip Op 07950, Second Dept 11-6-19

 

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THE ONE-HALF INCH DEFECT IN A STEP WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT DID NOT DEMONSTRATE A LACK OF NOTICE OF THE DEFECT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the 1/2 inch defect in a step was not trivial as a matter of law and the defendant did not demonstrate a lack of notice:

“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” … . Here, the evidence attached to the defendants’ moving papers indicated that there was a defect on the nosing of the step that was created by wear to the step and was approximately ½-inch long and extended down ½-inch on the riser. This alleged defective condition was located on a portion of the step where the plaintiff had to stand while twisting her body to close an exterior door. …

… [T]he defendants’ moving papers failed to eliminate triable issue of facts as to whether the condition had existed for a sufficient period of time for it to have been discovered and remedied by the defendants in the exercise of reasonable care … . Coker v McMillan, 2019 NY Slip Op 07948, Second Dept 11-6-19

 

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TRIAL JUDGE SHOULD NOT HAVE LIMITED DEFENSE CROSS-EXAMINATION OF A WITNESS TESTIFYING ABOUT DNA TRANSFER, AND SHOULD NOT HAVE INSTRUCTED THE JURY TO ACCEPT A POLICE OFFICER’S EXPLANATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have limited cross-examination of the prosecution’s witness about DNA transfer, and should not have instructed the jury, during defense counsel’s summation, to accept the testimony of a prosecution witness:

… [T]he defendant’s contention that his right to confrontation was violated when the Supreme Court limited cross-examination of a prosecution witness on the issue of DNA transfer is preserved for appellate review  … . Furthermore, the court’s limitation of defense counsel’s cross-examination with regard to DNA transfer was an improvident exercise of discretion, since the testimony defense counsel sought to elicit would have been relevant and would not have confused or misled the jury … . Moreover, under the circumstances presented, the error was not harmless, as there is a reasonable possibility that the error contributed to the defendant’s convictions … .

We also agree with the defendant’s contention that his right to a fair trial was violated when, during summation, defense counsel attacked the credibility of the testimony of certain police officers regarding wanted posters, and the Supreme Court instructed the jury, “there was testimony on that. The jurors will be bound by its recollection of the testimony and the explanation.” Since a “jury is presumed to follow the court’s instructions” … , the court’s instruction, which bound the jury to accept the officer’s explanation, rather than to rely on its recollection of the testimony and the evidence, was erroneous. People v Kennedy, 2019 NY Slip Op 07899, Second Dept 11-6-19

 

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PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC-ACCIDENT, REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED DESPITE QUESTIONS OF FACT ABOUT THE TWO DRIVERS’ NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-passenger’s motion for summary judgment in this rear-end collision case should have been granted, despite questions of fact about whether either driver was negligent:

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] …). Here, the plaintiffs made a prima facie showing of entitlement to summary judgment on their motion, and in opposition, the defendants failed to raise a triable issue of fact … . It is uncontested that the injured plaintiff was a passenger seated in the rear passenger seat of the Freed vehicle. While both drivers involved in the accident submitted affidavits in which each maintained that they were free from fault, neither driver suggested that the injured plaintiff bore any fault in the happening of the accident … . Romain v City of New York, 2019 NY Slip Op 07885, Second Dept 11-6-19

 

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