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ANONYMOUS TIP ALLEGING SUSPICIOUS BEHAVIOR BY MEN WEARING HOODIES GOING IN AND OUT OF A U-HAUL TRUCK DID NOT JUSTIFY PULLING OVER A U-HAUL TRUCK DRIVEN BY A MAN WEARING A HOODIE, WEAPON FOUND IN THE TRUCK SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the anonymous tip that persons were acting suspicious going in and out of a U-Haul truck and that one of the persons was wearing a brown hoodie did not justify pulling over a U-Haul truck driven by a man wearing a brown hoodie. The weapon found in the truck after the traffic stop should have been suppressed:

… [T]he police lacked reasonable suspicion to stop the vehicle based only on the anonymous tip of men “suspiciously” going in and out of a U-Haul truck, because the tip was insufficient to create reasonable suspicion that the individuals described were engaging in criminal activity … . The characteristics described in the anonymous tip were readily observable, and the behavior of the individuals described in the tip was consistent with the ordinary use of a U-Haul truck, as the tipster failed to identify what made the behavior suspicious for burglary … . Additionally, the tip “lacked predictive information” and was uncorroborated by the officers, as the U-Haul truck was not at the reported location when the officers arrived … . Accordingly, the information that the police received from the anonymous informant, even coupled with the officers’ own observations, did not provide them with reasonable suspicion to make an investigatory stop … . People v Floyd, 2019 NY Slip Op 02546, Second Dept 4-3-19

 

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ANGRY REMARK MADE TO PROBATION OFFICER DID NOT CONSTITUTE OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION, PROBATION SHOULD NOT HAVE BEEN REVOKED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s angry remark made to the probation officer (threatening to “blow her up”) was not a crime and therefore did not justify the revocation of probation and incarceration (defendant has served his sentence):

A person is guilty of obstructing governmental administration in the second degree when “he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act” (Penal Law § 195.05). “The plain meaning of the statute and the accompanying commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function” … . Although the evidence at the hearing demonstrated that the probation officer was at work, there was no evidence to show that the defendant attempted to prevent her from performing a specific function. The defendant’s angry outburst, without more, was insufficient to establish a violation of Penal Law § 195.05. Thus, the Supreme Court’s finding that the defendant violated a condition of his probation by failing to lead a law-abiding life is not supported by a preponderance of the evidence … . People v Brooks, 2019 NY Slip Op 02539, Second Dept 4-3-19

 

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NOTE HOLDER’S COMPLIANCE WITH NOTICE REQUIREMENTS OF RPAPL 1304 NOT DEMONSTRATED, MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent (the holder of the note) did not demonstrate compliance with the notice provisions of RPAPL 1304. Therefore respondent’s motion for summary judgment in this foreclosure action should not have been granted:

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . “The statute requires that such notice . . . be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower” … . …

The respondent, which submitted only a copy of the required notice, and did not submit any evidence that the notice was mailed in the manner required by the statute, failed to meet its prima facie burden with respect to the notice requirements of RPAPL 1304. Specifically, the respondent did not submit “an affidavit of service, [or] proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” … , or “proof 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” … . Marchai Props., L.P. v Fu, 2019 NY Slip Op 02511, Second Dept 4-3-19

 

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IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).

The First Department determined it was (harmless) error to fail to sustain defense counsel’s objection to the arresting officer’s unprompted identification testimony that the defendant was depicted in the videotape that was being played:

The officer was not previously familiar with defendant, and there was no basis to conclude he was “more likely to correctly identify the defendant from the [videotape] than [was] the jury” … . However, this isolated instance of apparent lay opinion was plainly harmless. After the overruled objection, the prosecutor immediately elicited that the officer could not “make out the face of the person” in the video whom he had said was defendant. The officer’s testimony as a whole made clear that he did not claim to recognize defendant in the video, but that he was testifying about similarities between the appearance and distinctive clothing of the man in the video and that of defendant when he was arrested. People v Calderon, 2019 NY Slip Op 02468, First Dept 4-2-19

 

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THE POLICE-OFFICER WITNESS, WHO DID TESTIFY AT TRIAL, DID NOT REMEMBER THE INCIDENT WHICH WAS THE BASIS FOR THE CHARGES AGAINST DEFENDANT, HIS GRAND JURY TESTIMONY WAS PROPERLY ADMITTED AS PAST RECOLLECTION RECORDED, DEFENDANT’S RIGHT OF CONFRONTATION WAS NOT VIOLATED BECAUSE THE WITNESS TESTIFIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive three-judge dissent, determined that the police-officer witness’s grand jury testimony was properly admitted under the “past recollection recorded” exception to the hearsay rule. The grand jury testimony did not violate the Confrontation Clause because the officer, who could not remember the incident he described to the grand jury, did, in fact, testify at trial:

The foundational requirements for the admissibility of a past recollection recorded are: 1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded … . “When such a memorandum is admitted, it is not independent evidence of the facts contained therein, but is supplementary to the testimony of the witness. * * *

… [T]he right to confrontation guarantees not only the right to cross-examine all witnesses, but also the ability to literally confront the witness who is providing testimony against the accused in a face-to-face encounter before the trier of fact … . The Confrontation Clause is satisfied when these requirements are fulfilled — even if the witness’s memory is faulty. The United States Supreme Court has directly addressed the situation where a witness was unable to explain the basis for a prior out-of-court identification due to memory loss … . In Owens, the Court held that “[t]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish” … . To that end, “[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination), . . . the very fact that he has a bad memory” … . People v Tapia, 2019 NY Slip Op 02442, CtApp 4-2-19

 

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NO PROOF NOTE WAS IN POSSESSION OF PLAINTIFF WHEN THE ACTION WAS COMMENCED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a two justice dissent, reversing Supreme Court, determined the evidence of standing was insufficient and plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. The majority held there was no proof the plaintiff was in possession of the note when the action was brought:

On or about September 17, 2014, plaintiff executed a power of attorney appointing Ocwen Loan Servicing, LLC (Ocwen) as its attorney-in-fact with power to enforce its rights with regard to loans included in the PSA [pooling and service agreement].

Two years after that, on October 19, 2016, plaintiff moved for summary judgment. Plaintiff submitted an affidavit by Kyle Lucas, an employee of a company whose indirect subsidiary is Ocwen. Lucas alleged that plaintiff had had physical possession of the note since June 6, 2007, but he failed to identify any document which provided the basis for his knowledge. A copy of defendant’s note, endorsed in blank … , was attached to plaintiff’s summary judgment motion. However, there is nothing in the record that proves when the note was physically delivered to plaintiff. Deutsche Bank Natl. Trust Co. v Guevara, 2019 NY Slip Op 02412, First Dept 3-28-19

 

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POLICE OFFICER HAD REASONABLE GROUNDS TO PULL OVER PETITIONER’S CAR AFTER THE CAR CROSSED THE FOG LINE WITH A BLINKER ON AND THEN MOVED BACK INTO THE LANE, REVOCATION OF DRIVER’S LICENSE FOR FAILURE TO SUBMIT TO A CHEMICAL TEST AFFIRMED (CT APP).

The Court of Appeals, over a dissent, determined the stop of defendant’s car was based upon reasonable grounds to believe petitioner had violated Vehicle and Traffic Law 1128. Therefore the revocation of petitioner’s license for refusing to submit to a chemical test was affirmed:

At the administrative hearing, testimony was elicited that, while on patrol at 1:00 AM on December 22, 2013, a police officer observed petitioner’s vehicle “make an erratic movement off the right side of the road, crossing the fog line and [moving] off the shoulder [with the vehicle’s] right front tire.” Once the vehicle left the paved roadway — and with the right-hand turn signal on — the officer saw the vehicle immediately move left, returning to its original lane of travel. After observing that there was no animal or other obstruction of the roadway that would have explained the “erratic jerking action,” the police officer pulled the vehicle over. During the stop, the officer noticed that petitioner smelled of alcohol and exhibited other signs of inebriation. Petitioner admitted that he “had a few drinks” and asked the officer to give him a ride home, failing field sobriety tests and a preliminary breath test given at the scene. At the precinct, despite receiving the appropriate warnings, petitioner refused to take a chemical test, resulting in an administrative license revocation hearing. The police officer’s testimony at the hearing, articulating credible facts to support a reasonable belief that petitioner violated Vehicle and Traffic Law § 1128 (a) (failure to remain in lane), provided substantial evidence that he had probable cause to stop petitioner’s vehicle … . Any negative or adverse inference that was drawn from petitioner’s failure to testify at the administrative revocation hearing was permissible … . Matter of Schoonmaker v New York State Dept. of Motor Vehs., 2019 NY Slip Op 02259, CtApp 3-28-19

 

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THE SECOND DEPT USED THIS OPINION AS A VEHICLE TO EXPLAIN THE COMPLEX PROOF REQUIREMENTS FOR SUMMARY JUDGMENT MOTIONS BROUGHT IN FORECLOSURE ACTIONS, EMPHASIZING THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, explained in detail the proof requirement for a summary judgment motion in a foreclosure action, emphasizing the requirements of the business records exception to the hearsay rule. The court determined that the bank’s proof of standing was sufficient, but the proof of defendant’s default was not. The opinion is too detailed to be fairly summarized here and should be consulted for guidance in foreclosure actions:

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion of trial-level dockets. For the reasons that follow, we modify the order appealed from.

… [I]t bears noting that the business record exception to the hearsay rule applies to a “writing or record” (CPLR 4518[a]). Although “[t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business” … , it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted … . Accordingly, “[e]vidence of the contents of business records is admissible only where the records themselves are introduced” … . Bank of N.Y. Mellon v Gordon,2019 NY Slip Op 02306, Second Dept 3-27-19

 

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DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death actions should have been dismissed. With respect to the “lack of informed consent” cause of action, the court held that the submission of the informed consent form by the defendant did not violate the Dead Man’s Statute:

The plaintiff contends that Meyerson [defendant surgeon] cannot rely upon the portion of his expert’s affidavit which states that the decedent was aware of the risks of the procedure because he signed a consent form for a similar procedure in 2012, because this evidence would be inadmissible pursuant to CPLR 4519, the so-called Dead Man’s Statute. CPLR 4519 “precludes a party or person interested in the underlying event from offering testimony concerning a personal transaction or communication with the decedent” … .

While evidence excludable at trial under CPLR 4519 may be considered in opposition to a motion for summary judgment so long as it is not the sole evidence proffered … , such evidence “should not be used to support summary judgment” … . However, the statute does not bar “the introduction of documentary evidence against a deceased’s estate. . . . [A]n adverse party’s introduction of a document authored by a deceased does not violate the Dead Man’s Statute, as long as the document is authenticated by a source other than an interested witness’s testimony concerning a transaction or communication with the deceased” … . Inasmuch as the expert’s affidavit as to the decedent’s execution of the form was predicated upon the medical records, which contained the decedent’s consent form for the prior surgery and on which the expert relied, and the records were properly authenticated and submitted on the motion, Meyerson properly relied upon the expert opinion to support his motion … . Wright v Morning Star Ambulette Servs., Inc., 2019 NY Slip Op 02381, Second Dept 3-27-19

 

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PLAINTIFF’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he plaintiff failed to submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that it properly served the defendant pursuant to RPAPL 1304. The plaintiff instead relied on the “Affidavit of Mailing” of a vice president of loan documentation of Wells Fargo. However, the affiant did not aver that she personally mailed the notice, and she did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and, therefore, she did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed …. Similarly, the presence of numbered bar codes on the copies of the 90-day statutory notices submitted by the plaintiff did not suffice to establish, prima facie, proper mailing under RPAPL 1304 … . U.S. Bank N.A. v Offley, 2019 NY Slip Op 02377, Second Dept 3-27-19

 

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