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DEFENDANTS RAISED A QUESTION OF FACT ABOUT WHETHER THEY WERE SERVED WITH THE SUMMONS AND COMPLAINT AND PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Defendants raised a question of fact whether they were served with the summons and complaint and plaintiff failed to prove compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he defendants submitted the affidavit of Vicki Erani, in which she expressly averred that she was never served. She also averred that, on Thursdays, which was the day of the week of the alleged service, she customarily was away from her residence, assisting her mother with errands. The defendants also submitted the affidavit of Vicki Erani’s mother confirming that Vicki Erani spent every Thursday with her. The defendants also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server had been denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. The defendants’ submissions rebutted the presumption of proper service established by the process server’s affidavit … . * * *

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because neither of the affidavits submitted by the plaintiff of two of its vice presidents asserted personal knowledge of the purported mailing and neither vice president made the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . The plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. Since the plaintiff failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Citimortgage, Inc. v Erani, 2020 NY Slip Op 00843, Second Dept 2-5-20

 

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EVIDENCE DID NOT SUPPORT CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER (SECOND DEPT).

The Second Department determined the trial evidence did not support consecutive sentences for criminal possession of a weapon and murder:

We agree with the defendant that the sentencing court could not lawfully direct that the sentence imposed upon one of the convictions of criminal possession of a weapon in the second degree run consecutive to the sentence imposed upon the conviction of murder in the second degree. As the defendant correctly contends, it is impossible, based on the indictment or the trial court’s charge, to determine whether the act that formed the basis of the jury’s verdict on the criminal possession of a weapon in the second degree counts was not the basis for its conviction on the murder in the second degree count. Therefore, the People have failed to meet their burden of proving the validity of consecutive sentences … . People v McClinton, 2020 NY Slip Op 00879, Second Department 2-5-20

 

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RECORD DOES NOT DEMONSTRATE DEFENSE COUNSEL WAS MADE AWARE OF A JUROR’S COMPLAINTS ABOUT THE DELIBERATIONS AND THE CONTENTS OF A NOTE FROM THE JURY; THE FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED; DNA TESTING OF GUM DISCARDED BY THE DEFENDANT WHILE IN CUSTODY WAS PROPER (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the for cause challenges to two jurors should have been granted and the record does not indicate defense counsel was made aware of a juror’s complaint to the judge about the deliberations and the contents of a note from the jury. The decision dealt with several suppression issues, including the finding that DNA testing of a piece of gum discarded by the defendant when he was in custody was proper:

At the commencement of the second day of deliberations, the court met with counsel and deliberating juror C.H., who had left the court a telephone message expressing concerns about deliberations. This conversation took place outside the defendant’s presence. Although the court properly attempted to keep its communication with C.H. ministerial by simply directing her to put her concerns in writing, C.H. refused to accept the court’s directions, expressing concerns about the course of deliberations, including a concern that someone was “stirring the jury” and that other jurors had been “influenced.” The court eventually directed a court officer to return C.H. to the jury room and provide her with writing materials. * * *

After the colloquy with C.H. and following an off-the-record discussion, the defendant was returned to the courtroom, and the court stated that it had received a note from the jury which had been marked as Court Exhibit X and “sealed with the consent of all parties.” No further discussion of Court Exhibit X appears on the record. * * *

We cannot assume, from the County Court’s statement that the parties agreed to seal the note, that counsel was made aware of the exact contents of the note since “an insufficient record cannot be overcome with speculation about what might have occurred. The presumption of regularity cannot salvage an O’Rama error of this nature” … . Moreover, since the failure to disclose a jury note to counsel is a mode of proceedings error, it cannot be overlooked as harmless even where the evidence is otherwise overwhelming … . People v Kluge, 2020 NY Slip Op 00878, Second Dept 2-5-20

 

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SEX TRAFFICKING CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing the sex trafficking conviction, determined there was insufficient evidence defendant used force or participated in a scheme to compel the alleged victim to engage in prostitution by threat of physical harm. The sex trafficking conviction was deemed to be against the weight of the evidence:

The evidence showed that the alleged victim, her mother, and a third woman, sought to earn more money than they were earning in Florida, that they voluntarily traveled with defendant to New York to earn money as prostitutes, and that defendant left them alone at times in Florida and New York. There was no evidence presented at trial that defendant ever threatened to harm the alleged victim if she failed to begin or continue working as a prostitute. A detective described a call he overheard between defendant and the alleged victim, after she was apprehended, in which defendant was angry because he believed that she did not get money from a client. However, this does not suffice to prove any use of force or a “scheme” to compel her to work as a prostitute. Similarly, although the third woman in the group that came with defendant from Florida testified that she was a “little intimidated” by an argument over money between defendant and another man, this does not establish the required threat of harm, even assuming the alleged victim also saw and heard the argument. People v Hayes, 2020 NY Slip Op 00832, First Dept 2-4-20

 

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THE WARRANTLESS SEIZURE AND SEARCH OF A BAG IN DEFENDANT’S CAR WAS NOT JUSTIFIED UNDER THE INEVITABLE DISCOVERY DOCTRINE; ERROR HARMLESS HOWEVER (FOURTH DEPT).

The Fourth Department determined the inevitable discovery doctrine did not apply to a “diabetes bag” seized by the police. The bag should have been suppressed, but error was deemed harmless:

On the day of his arrest, a police officer pulled defendant’s vehicle over for failing to signal. Defendant had a passenger with him. After approaching the vehicle, the officer observed that defendant appeared to be under the influence of drugs and placed him under arrest. The passenger was also arrested. At a suppression hearing, the officer testified that, after she arrested defendant and seated him in her patrol vehicle, defendant indicated that he had diabetes medication in his vehicle. Defendant did not give the officer permission to retrieve the bag of medication from his vehicle or say that he needed it at that time, nor did he give her permission to open the bag. The officer testified that she retrieved the bag for defendant because defendant would be allowed access to certain medication in lockup; she did not intend to give the bag to defendant while he was in the patrol vehicle. The officer looked in the bag and found needles, “narcotics,” and “some residue”—not diabetes medication. Defendant’s vehicle was subsequently impounded pursuant to Buffalo Police Department (BPD) written policy. During the inventory search of the vehicle, the officers recovered, inter alia, methamphetamine. * * *

We agree with defendant, however, that the court erred in refusing to suppress the evidence obtained from the diabetes bag pursuant to the inevitable discovery doctrine. The contents of the diabetes bag that defendant sought to suppress was the “very evidence” that was obtained as the “immediate consequence of the challenged police conduct” … . People v Hayden-larson, 2020 NY Slip Op 00791, Fourth Dept 1-31-20

 

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MEDICAL MALPRACTICE ACTIONS REINSTATED AGAINST SEVERAL DEFENDANTS; TWO JUSTICE DISSENT ARGUED THE ACTIONS WERE REINSTATED BASED UPON A NEW THEORY WHICH SHOULD NOT HAVE BEEN CONSIDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, reinstated the medical malpractice action against several defendants. The dissent argued that evidence submitted in opposition to defendants’ motion for summary judgment presented a new theory and should have been rejected on that ground. The dissent argued that the new theory was raised for the first time in a “supplemental” bill of particulars which, the majority concluded, had been properly struck by Supreme Court:

… [W]e conclude that the court properly granted the motions to strike plaintiff’s “supplemental” bills of particulars inasmuch as they were actually amended bills of particulars. We further conclude that the amended bills of particulars are “a nullity” inasmuch as the note of issue had been filed and plaintiff failed to seek leave to serve amended bills of particulars before serving them upon defendants … .

From the dissent:

… [P]laintiff’s expert’s opinions on malpractice and causation cannot create a question of fact because they are based on a new condition and new injury. Plaintiff’s expert opined that: plaintiff’s son developed Henoch-Schonlein Purpura (HSP) in the days before presenting to the emergency room and was suffering from HSP when he presented to the emergency room; plaintiff’s son was misdiagnosed and the correct diagnosis was HSP; as a result of the mistriage, plaintiff’s son went into hypovolemic shock; and, if properly triaged, plaintiff’s son’s condition, i.e., HSP, never would have progressed to hypovolemic shock.

Plaintiff’s expert’s opinion regarding failure to triage and diagnose relates to a new condition, HSP, and his opinion on proximate cause relates to a new injury, hypovolemic shock, neither of which were included in plaintiff’s original bill of particulars and both of which were included in the “supplemental” bills of particulars, which this Court unanimously agrees were properly struck. Inasmuch as plaintiff’s expert’s opinions regarding the defendants’ negligence and proximate cause involve a new condition and new injury not included in plaintiff’s original bill of particulars, they constituted a new theory of recovery and thus could not be used to defeat the defendants’ motions … . Jeannette S. v Williot, 2020 NY Slip Op 00743, Fourth Dept 1-31-20

 

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DEFENDANT’S ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE IDENTIFICATION TESTIMONY WAS TOO WEAK TO MEET THE BEYOND A REASONABLE DOUBT STANDARD (SECOND DEPT).

The Second Department, reversing defendant’s conviction determined the identification evidence was too weak to support the conviction in this robbery case. The conviction was deemed to be against the weight of the evidence:

Upon the exercise of our independent factual review power (see CPL 470.15[5]), we conclude that the verdict of guilt was against the weight of the evidence. “[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [factfinder] was justified in finding the defendant guilty beyond a reasonable doubt” … .

At the second trial, in this one-witness identification case, the complainant consistently had difficulty remembering details of the crime. She could not remember how she described the defendant, and when asked how she recognized him, she stated, “[b]y his shirt.” The description she provided of the perpetrator shortly after the incident did not match, in several ways, the defendant’s actual physical characteristics and appearance. Moreover, at the time of his arrest, several minutes after the incident, the defendant possessed neither the money nor the personal items which had allegedly been taken from the complainant. People v James, 2020 NY Slip Op 00615, Second Dept 1-29-20

 

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THE EVIDENCE DID NOT SUPPORT THE TERMINATION OF MOTHER’S PARENTAL RIGHTS; PETITIONER MADE NO EFFORT TO HELP MOTHER MAKE THE TRIAL DISCHARGE WORK (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the termination of mother’s parental rights. During the trial discharge of the child to mother, the petitioner made no effort to place in a school closer to mother and mother allowed the child to stay at the foster home on weeknights to attend school:

The evidence at the fact-finding hearing established that in May 2016, the mother had adequate housing for the child, that in June 2016, she had completed her service plan and was having unsupervised parental access with the child, and that in July 2016, she was having overnight and weekend parental access. In November 2016, the Family Court directed that the petitioner implement a trial discharge to the mother, and a trial discharge commenced on December 23, 2016. Although at that time the mother resided in Manhattan and the child was attending school in Brooklyn, the petitioner did not provide any assistance with regard to transferring the child to a school closer to the mother in Manhattan, did not provide any assistance with the child’s transportation to and from his school in Brooklyn, and did not provide other appropriate services to the family. The trial discharge failed in April 2017. According to the petitioner’s witness, the trial discharge failed after the petitioner became aware that the mother had not taken the child into her full-time custody. According to the mother, the child spent weeknights with the foster mother in Brooklyn, because of the long commute between the mother’s apartment in Manhattan and the child’s school in Brooklyn. After the trial discharge failed in April 2017, the mother consistently attended her scheduled supervised parental access two hours per week until the petition was filed on August 7, 2017.

Under the circumstances presented, the petitioner failed to establish by clear and convincing evidence that, during the relevant period of time, the mother failed to maintain contact with or plan for the future of the child, and further, that it made diligent efforts to encourage and strengthen the parental relationship (see Social Services Law § 384-b[7] …). Matter of Tai-Gi K. (Nadine B.), 2020 NY Slip Op 00586, Second Dept 1-29-20

 

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THE BANK DID NOT PROVE IT HAD STANDING IN THIS FORECLOSURE ACTION, PRESENTING ONLY HEARSAY; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank in this foreclosure proceeding did not prove it had standing, that the defendant was in default, or that the notice provisions of Real Property Actions and Proceedings La (RPAPL) 1304 were complied with. With respect to standing, the Second Department wrote:

… [T]he plaintiff submitted the note, which contains an undated endorsement in blank, as well as affidavits from two vice presidents of loan documents for its loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo). In both affidavits … each vice president stated that review Wells Fargo’s business records relating to the subject mortgage loan had confirmed that the plaintiff was in possession of the note prior to November 7, 2012. Neither one identified the documents reviewed or any basis for the conclusion that the plaintiff was in possession of the note more than two years prior to the subject review of Wells Fargo’s files. The only document relevant to this issue attached to either affidavit was a copy of the note with the undated endorsement in blank. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value … . HSBC Bank USA, N.A. v Campbell-Antoine, 2020 NY Slip Op 00578, Second Dept 1-29-20

 

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PLAINTIFFS CAN NOT RAISE A NEW THEORY OF LIABILITY IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant hospital’s motion for summary judgment in this medical malpractice action should have been granted. The plaintiffs attempted to raise an evidentiary issue and theory of liability for the first time in opposition to the motion:

… [T]he plaintiffs improperly alleged, for the first time, a new theory claiming that other employees of the hospital were negligent in failing to properly administer Decadron and Heparin in accordance with the prescription of the plaintiff’s attending physician. ” A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars'” … . Bacalan v St. Vincents Catholic Med. Ctrs. of N.Y., 2020 NY Slip Op 00561, Second Dept 1-29-20

 

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