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CRITERIA FOR A MOTION TO RENEW WERE NOT MET, DISSENTERS ARGUED THE COURT HAD THE DISCRETION TO CONSIDER THE MOTION AS A MOTION TO REARGUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the motion to renew should not have been granted. The dissenters argued the motion could have been considered a motion to reargue in the exercise of discretion:

It is well settled that “[a] motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion . . . and, inter alia, that would change the prior determination” (… see CPLR 2221 [e] [2]). Further, “[a]lthough a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a reasonable justification for the failure to present such facts on the prior motion’ ” ( …see CPLR 2221 [e] [3]). In particular, “[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” … . …

We reject our dissenting colleagues’ conclusion that the court would have been “justified” in exercising discretion to treat the motion to renew as a motion to reargue, and that it effectively did so in granting Camelot’s motion. We disagree. There is no justification in this case to “deem” Camelot’s motion as one seeking reargument and we decline to do so because, in our view, Camelot actively foreclosed that avenue of relief. The Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 2019 NY Slip Op 06245, Fourth Dept 8-22-19

 

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EVIDENCE DID NOT SUPPORT A LEVEL THREE RISK ASSESSMENT, REDUCED TO LEVEL TWO; STANDARD OF PROOF IS PREPONDERANCE NOT CLEAR AND CONVINCING (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence to justify a level three risk assessment. The assessment was reduced to level two. The court noted that County Court should have applied the preponderant evidence standard, not a clear and convincing standard:

… [T]he People did not establish by clear and convincing evidence that defendant had the requisite pattern of drug use, and there is no “indication in the record that drugs . . . played a role in the instant offense” … . * * *

… [T]he hearsay statement by defendant’s ex-wife that he is a “marijuana addict” is entitled to no weight. Not only is that statement conclusory and unsupported by any other evidence, nothing in the record suggests that defendant’s ex-wife is qualified to diagnose addiction. * * *

… [T]he court erred in assessing him 10 points under risk factor 12, for failure to accept responsibility, given that he “pleaded guilty, admitted his guilt, appeared remorseful when interviewed in connection with the preparation of a presentence report, and apologized” for his conduct  … . People v Kowal, 2019 NY Slip Op 06325, Fourth Dept 8-22-19

 

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DEFENDANTS DID NOT SUBMIT THEIR CERTIFICATE OF INCORPORATION AND THE PRINTOUT FROM THE DEPARTMENT OF STATE WAS NOT IN ADMISSIBLE FORM; DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue was not supported by admissible evidence and should have been denied:

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” … . To succeed on their motion here, the defendants were obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County … . Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper … .

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record … . Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiffs’ choice of venue in Kings County was improper … . O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 2019 NY Slip Op 06156, Second Dept 8-21-19

 

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PLAINTIFF WAS WALKING IN THE CROSSWALK WHEN SHE WAS STRUCK BY DEFENDANT’S BUS MAKING A RIGHT TURN; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was in the crosswalk when she was struck by defendant’s bus making a right turn:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit and a certified copy of the police accident report, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her … . In opposition, the defendants failed to raise a triable issue of fact as to as to whether there was a non-negligent explanation for striking the plaintiff.

Furthermore, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … . Rodriguez-Garcia v Bobby’s Bus Co., Inc., 2019 NY Slip Op 06221, Second Dept 8-21-19

 

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DEFENDANT DOCTOR’S MOTION TO CHANGE THE VENUE OF THE MEDICAL MALPRACTICE ACTION FROM BRONX TO WESTCHESTER COUNTY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined defendant doctor’s (Goldstein’s) motion to change the venue of this medical malpractice action from Bronx to Westchester County should not have been granted. The majority held the burden was on Goldstein to demonstrate the need for a change of venue and that burden was not met:

Plaintiff commenced this medical malpractice action in Bronx County, alleging that defendants were negligent in rendering podiatric care and treatment to her between April and September 2016. Defendants moved and cross-moved to transfer venue to Westchester County. WestMed and Rye submitted an affidavit of their medical director averring that Dr. Goldstein was one of their employees in Westchester. Dr. Goldstein submitted an affidavit averring that he had offices in Bronx County and Westchester County. He indicated that Westchester County was where his principal place of business was located because that was where he spent the majority of his time. However, he also averred that he maintained privileges at St. Barnabas Hospital and supervised podiatric residents at two St. Barnabas Hospital clinics where approximately 150 patients per month were seen. He averred that in addition he saw approximately 20-25 patients per week at a Bronx Park Medical pavilion located at 2016 Bronxdale Avenue in the Bronx.

Plaintiff is suing not only Westmed Medical Group, P.C. and Rye Ambulatory Surgery Center, LLC, but Dr. Goldstein individually. Since Dr. Goldstein is a party to the lawsuit, venue is proper in the county where he may be said to reside. CPLR 503(a) provides that the place of trial “shall be in the county in which one of the parties resided when it was commenced,” and, insofar as relevant here, “[a] party resident in more than one county shall be deemed a resident of each such county” … . Dr. Goldstein may also be viewed as an individually-owned business, and thus a resident of any county in which he has a principal office (CPLR 503[d]). Thus, an individually-owned business, much as a partnership, may be deemed a resident of the county where it has its principal office, as well as any county in which the individual owner being sued resides … . Siegel notes that the “principal office” county is an alternative; venue may still be based on the residence of natural-born parties … .

Applying these principles, Dr. Goldstein’s affidavit, attesting to residency in Westchester County but devoid of supporting documentation of residency, was insufficient to prove that plaintiff’s designation of Bronx County as venue was improper … . Lividini v Goldstein, 2019 NY Slip Op 06150, Fourth Dept 8-20-19

 

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THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a concurrence, determined the evidence concerning the TrueAllele source code used to connect the DNA found at the murder scene to the defendant was testimonial, but the source code, as artificial intelligence, was not the declarant. Therefore the fact that the defendant was not provided with the source code (which was not requested by the defendant during the trial) did not deprive defendant of the right to confront the witnesses against him. Rather, the Third Department found, the witness who testified about how the source code was used in the DNA testing was the declarant. Defendant had raised the intriguing question whether the source code, as a form of artificial intelligence, was the actual declarant triggering the right of confrontation:

Cybergenetics was “acting in the role of assisting the police and prosecutors in developing evidence for use at trial” … . Also, the report reflects TrueAllele’s conclusions “upon review of the raw data associated with the testing” … . TrueAllele, by running at the source code’s direction, compared DNA found at the crime scene to that of defendant’s DNA and generated the report containing the likelihood ratios, which, in effect, implicates defendant in the murder; thus, it is clearly biased in favor of law enforcement … . Accordingly, application of the primary purpose test reveals that the TrueAllele report is testimonial in nature … .

Despite concluding that the TrueAllele report is testimonial, we do not find, given the particular facts of this case, that the source code, even through the medium of the computer, is a declarant. This is not to say that an artificial intelligence-type system could never be a declarant, nor is there little doubt that the report and likelihood ratios at issue were derived through distributed cognition between technology and humans … . Indeed, similar to many expert reports, the testimonial aspects of the TrueAllele report are formulated through a synergy and distributed cognition continuum between human and machine … , but this fact alone does not tip the scale so far as to transform the source code into a declarant. People v Wakefield, 2019 NY Slip Op 06143, Third Department, 8-15-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWELL WAS LAST INSPECTED OR CLEANED IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff alleged a discarded metrocard was the cause of her slip and fall on a train station stairwell. The defendant did not demonstrate when the stairwell was last inspected or cleaned:

Defendant failed to establish its prima facie entitlement to judgment as a matter of law, in this action where plaintiff … alleges that he was injured when, while descending stairs in a subway station, he slipped and fell on a discarded Metrocard. Although the cleaner on duty in the station testified he was given a Cleaners Manual and a written cleaning schedule, evidencing that defendant had a “rational means for dealing with the problem” of strewn MetroCards on the stairwell of train stations, the cleaner conceded that he could not recall whether he had deviated from his usual work schedule on the date of plaintiff’s accident and he did not have an independent recollection of when the staircase was last cleaned or inspected prior to the accident … .

Because defendant did not establish its prima facie entitlement to summary judgment, the burden never shifted to plaintiff to establish how long the condition existed … . Carela v New York City Tr. Auth., 2019 NY Slip Op 06140, First Dept 8-13-19

 

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THERE WERE NO GROUNDS TO DISTURB THE FACTUAL FINDINGS MADE BY THE JUDGE IN THIS BENCH TRIAL OF A FORECLOSURE ACTION, TWO DISSENTERS ARGUED THE FINDINGS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the evidence at the bench trial in this foreclosure proceeding supported the judge’s conclusion that plaintiff bank was not the cause of defendant’s inability to obtain financing to payoff the mortgage pursuant to a settlement agreement. The dissenters argued the trial judge’s findings were against the weight of the evidence, primarily because the judge found defendant’s testimony to be “honest and accurate.” The key issue in the appeal was whether there were sufficient grounds to disturb the  judge’s factual findings:

… [W]e perceive no basis on which to disturb the trial court’s determination. As articulated by the Court of Appeals, the standard of review on an appeal from a decision based on findings of fact, resting in large measure on determinations of the credibility of witnesses, made by the court after a bench trial, is as follows:

“[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] …).

Supreme Court’s rejection of defendant’s claim — a claim based on testimony not only lacking support in the contemporaneous documentary evidence, but inconsistent with that evidence — more than passes muster under this highly deferential standard. Security Pac. Natl. Bank v Evans, 2019 NY Slip Op 06138, First Dept 8-13-19

 

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PLAINTIFF’S VERDICT IN THIS PERSONAL INJURY ACTION BROUGHT BY A FIREFIGHTER PURSUANT TO GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a SHOULD NOT HAVE BEEN SET ASIDE, CRITERIA FOR SETTING ASIDE A VERDICT EXPLAINED IN DEPTH (SECOND DEPT).

The Second Department reversed Supreme Court’s setting aside the verdict in this personal injury action brought by a firefighter pursuant to General Municipal Law 205-a and Labor Law 27-a. The firefighter alleged he tripped over a torn rug in the fire department office. The torn rug violated provisions of the NYC Administrative Code. The Second Department took great pains to explain the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence pursuant to CPLR 4404:

Although there were no other individuals present when the plaintiff fell, his supervisor immediately responded to “the loud bang” that resulted from the accident. The plaintiff’s supervisor prepared a report that morning, which stated that the plaintiff had tripped on a piece of loose rug. Another one of the plaintiff’s supervisors testified that he responded to the location of the accident and observed “a ripped carpet there.” Photographs of the tear in the carpet that caused the plaintiff to fall were admitted into evidence and identified by the plaintiff’s witnesses. * * *

The plaintiff testified that at the time of the accident, he felt a “popping in [his] leg.” A doctor who examined the plaintiff after the accident, Leonard Harrison, testified that the plaintiff tore his hamstring as the result of the subject accident.

The City did not present any evidence to show that the plaintiff’s accident was caused by something other than the tear in the carpet, or that the accident did not occur at all. Although the jury was not required, as a matter of law, to credit the plaintiff’s uncontradicted testimony …  the City’s efforts to impeach the plaintiff as to the cause of the accident were particularly weak.  * * *

Despite the City’s attacks, the plaintiff’s testimony as to the cause of the accident was consistent throughout the course of the trial. Moreover, his testimony regarding the cause of the accident was consistent with the testimony he gave at his deposition, in which he repeatedly testified that “[his] foot got caught on a piece of torn rug, where [he] los[t] [his] balance and tripped.” The plaintiff’s trial testimony was also consistent with the reports he gave to his supervisor and to doctors shortly after the accident occurred.

On this record, any conclusion that the plaintiff’s accident was the result of some other unidentified cause, or that the entire incident was fabricated, could only be based upon mere speculation … . Annunziata v City of New York, 2019 NY Slip Op 06055, Second Dept 8-7-19

 

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BANK DID NOT SUBMIT SUFFICIENT PROOF OF A LOST NOTE AND COMPLIANCE WITH NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the bank, inter alia,  did not demonstrate compliance with the RPAPL 1304 notice provisions and failed to submit sufficient proof of a lost note in this foreclosure action:

… [A]lthough the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note’s terms, the affidavit of lost note submitted in support of its motion failed to establish the facts that prevent the production of the original note (see UCC 3-804 …). Additionally, we note that Riley’s out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff’s motion … .

Further, the evidence submitted in support of the plaintiff’s motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action … . The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did not provide evidence of a standard office mailing procedure and provided no independent evidence of the actual mailing … .

Likewise, the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage requiring it to give notice of default prior to demanding payment in full … . U.S. Bank N.A. v Cope, 2019 NY Slip Op 06111, Second Dept 8-7-19

 

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