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THE AFFIDAVIT SUBMITTED TO DEMONSTRATE PLAINTIFF HAD POSSESSION OF THE NOTE PRIOR TO COMMENCING THE FORECLOSURE ACTION WAS HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate standing in this foreclosure action. The affidavit submitted to demonstrate plaintiff had possession of the note prior to commencing the action was hearsay:

… [T]he plaintiff relied on Harris’s affidavit to demonstrate that it had possession of the note prior to commencing this action. Harris averred, in relevant part, that the plaintiff received physical delivery of the original note on September 5, 2013. As the defendant correctly notes, Harris failed to attach any business record to her affidavit to demonstrate that fact or to aver that she had personal knowledge of the physical delivery of the note. Accordingly, Harris’s averment that the plaintiff had possession of the note prior to the commencement of this action was inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Nationstar Mortage, LLC v Guarino, 2025 NY Slip Op 02925, Second Dept 5-14-25

Practice Point: Whoever submits an affidavit stating the plaintiff in a foreclosure action had possession of the note before the action was commenced must attach a probative business record or demonstrate personal knowledge of the delivery of the note, not the case here.

 

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THE AFFIANT DID NOT DEMONSTRATE PERSONAL KNOWLEDGE OF THE MAILING PROCEDURES AND DID NOT LAY A FOUNDATION FOR THE ATTACHED BUSINESS RECORDS; THEREFORE THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE THE RPAPL 1304 NOTICE WAS PROPERLY MAILED, A CONDITION PRECEDENT FOR FORECLOSURE (SECOND DEPT). ​

The Second Department, reversing the judgment of foreclosure, determined the plaintiff did not prove the mailing of the RPAPL 1304 notice of foreclosure, a condition precedent for foreclosure. The affidavit did not demonstrate the affiant had personal knowledge of the relevant mailing procedures and did not provide an adequate foundation for relevant business records:

… [T]he affidavits submitted in support of Bank of America’s second motion … for summary judgment on the complaint … did not establish the affiants’ personal knowledge of the standard office mailing procedures of LenderLive, the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of Bank of America … . The affidavits also “failed to address the nature of [Bank of America’s] relationship with LenderLive and whether LenderLive’s records were incorporated into [Bank of America’s] own records or routinely relied upon in its business” … . Bank of America thus “failed to lay a foundation for the admission of the transaction report generated by LenderLive” … .. Accordingly, Bank of America failed to establish its strict compliance with RPAPL 1304 … . Therefore, the Supreme Court should have denied those branches of Bank of America’s second motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. U.S. Bank N.A. v Bravo, 2025 NY Slip Op 02953, Second Dept 5-14-25

Same issues and result in Wells Fargo Bank, N.A. v Murray, 2025 NY Slip Op 02960, Second Dept 5-14-25

Practice Point: Any affidavit submitted by the bank in a foreclosure action to prove the mailing of the RPAPL 1304 notice of foreclosure must demonstrate the affiant’s personal knowledge of the mailing procedures and must lay a foundation for the admissibility of any business records relied upon to prove proper mailing.

 

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ALTHOUGH THE INFORMANT WHO CALLED 911 ABOUT A “MAN WITH A GUN” WAS KNOWN TO THE POLICE AND MAY BE PRESUMED TO BE RELIABLE, THERE WAS NO TESTIMONY AT THE SUPPRESSION HEARING ABOUT THE BASIS FOR THE INFORMANT’S KNOWLEDGE; THEREFORE THE PEOPLE DID NOT PROVE THE POLICE HAD REASONABLE SUSPICION TO STOP THE DEFENDANT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the suppression motion should have been granted. Although the informant who made the 911 call was known to the police, there was no testimony at the suppression hearing about the basis of the informant’s knowledge. The stop of defendant’s vehicle for failure to use a turn signal did not justify removing defendant from the vehicle and handcuffing him:

When the People seek to rely on information provided by an informant to establish the reasonable suspicion necessary to justify a vehicle stop, “‘it [is] essential that at least some showing be made of the basis of the informant’s knowledge'” … . Where there is no testimony demonstrating how the informant knew the defendant was engaged in illegality, such as the possession of a weapon, reasonable suspicion cannot be found … .

… Neither the sergeant nor the officer testified as to how the informant, who had called the 911 emergency number, knew that the defendant had a gun. Therefore, the People failed to demonstrate that the information provided by the informant constituted “more than unsubstantiated rumor, unfounded accusation or conclusory characterization” … .

In the absence of the People eliciting testimony at the suppression hearing that sufficiently explained how the informant knew the defendant was in possession of a weapon, the County Court erred in concluding that the officers had reasonable suspicion to stop the defendant … . Moreover, while the informant did identify the defendant from across the street, this identification occurred well after the defendant had been stopped and detained by the officers. “‘Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion'” … .

… [W]hile the informant, who was known to the responding officers, may be presumed to be reliable, the basis of his knowledge was not sufficiently established at the suppression hearing. People v Thomison, 2025 NY Slip Op 02938, Second Dept 5-14-25

Practice Point: At a suppression hearing, the People have the burden to prove the legality of the police conduct. Where an informant known to the police calls 911 to report a “man with a gun,” the reliability of the informant may be presumed. But the People must still prove the basis for the informant’s knowledge. Where, as here, there is no testimony demonstrating how the informant learned about the “man with a gun,” the People have not met their burden of proof.

 

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IN THIS STREET-STOP-FRISK CASE, THE POLICE OFFICER TESTIFIED HE SAW DEFENDANT PUT A BLACK OBJECT IN HIS JACKET POCKET, BUT HE DID NOT TESTIFY HE HAD A REASONABLE SUSPICION THE OBJECT WAS A FIREARM; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP AND FRISK; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECON DEPT).

The Second Department, reversing Supreme Court’s denial of the suppression motion in this street-stop case, determined the police officer, Espinal, did not have a reasonable suspicion that the object defendant put in his pocket was a firearm. Therefore the officer did not have a sufficient reason to grab defendant’s pocket:

While driving down 193rd Street toward a dead end, Detective Espinal spotted a vehicle illegally parked in the middle of the dead end’s cul-de-sac. Detective Espinal testified that there appeared to be an individual in the driver’s seat and another individual standing outside the vehicle by the driver’s window. Detective Espinal observed that the individual standing outside the vehicle, who was later identified as the defendant, was holding a black object in his right hand, although Detective Espinal could not identify the object. Detective Espinal testified that when the defendant made eye contact with him, the defendant put the object into the right front pocket of the jacket that he was wearing and proceeded to walk toward the police vehicle with his hands in his jacket pockets. As the defendant continued to walk toward the police vehicle, Detective Espinal exited the vehicle and directed the defendant to take his hands out of his jacket pockets and put his hands up. Although the defendant initially complied, as Detective Espinal got closer, the defendant began to reach down toward his right jacket pocket. Upon seeing the defendant reach for his jacket pocket, Detective Espinal grabbed the pocket and felt a firearm inside. Detective Espinal withdrew a firearm from the defendant’s pocket and instructed one of his partners to place the defendant under arrest. * * *

… Detective Espinal did not have the required reasonable suspicion to frisk the defendant. Detective Espinal’s testimony is clear. He saw the defendant outside the illegally parked vehicle and watched as the defendant placed a black object in his jacket pocket. Detective Espinal did not testify as to what he thought the object was or whether he had any reasonable suspicion to believe that the object was a weapon of any kind, let alone a firearm. The only instance of illegality that Detective Espinal testified to was the illegally parked vehicle, which would not have provided the officers with a basis to frisk the defendant … . People v Taylor, 2025 NY Slip Op 02937, Second Dept 5-14-25

Practice Point: The People have the burden of demonstrating the legality of the police conduct in a stop and frisk. Here the officer testified he saw defendant put a black object in his pocket, but he did not testify he suspected the object was a firearm. The fact that the incident took place in a high-crime area was not enough to provide reasonable suspicion sufficient for a stop and frisk.​

 

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PLAINTIFF TEACHER FELL WHEN SHE LEANED ON A DEFECTIVE DESK; THE DEFENDANT SCHOOL DISTRICT DID NOT PROVE THAT THE DESK WAS INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE SCHOOL DISTRICT DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DESK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city school district was not entitled to summary judgment in this personal injury case. Plaintiff, a teacher, alleged she fell when she leaned on a defective desk. The school district did not demonstrate it lacked constructive notice of the defective desk because it did not present proof that the desk was inspected close in time to plaintiff’s fall:

Plaintiff, a teacher at a school in the Bronx, alleges that she fell when she leaned on a defective desk as she was grading papers in the back of a classroom. Defendants sustained their burden of establishing that they neither created nor had actual notice of the alleged defect by submitting the testimony of the school’s custodian engineer stating that there had been no prior complaints or injuries related to the desk, and that there was no repair record of any desk because the school discarded broken desks and chairs. Plaintiff also testified that she was not aware of the defective desk leg until after her accident, and that none of the students who used the desk ever reported any defect to her …. .

Nevertheless, defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint, as they did not sustain their burden of demonstrating that they lacked constructive notice of the allegedly defective condition. Although defendants relied on a daily logbook recording the custodian engineer’s daily routine for the building, the logbook was not sufficient to show that defendants inspected the classrooms to ensure that they were free from defects … . Furthermore, the custodian engineer testified at his deposition that although he inspected the classrooms every morning, he did so only to make sure that the heat was on. This testimony is insufficient to demonstrate defendants’ lack of constructive notice, as it fails to show that the alleged condition did not exist when the area was last inspected before plaintiff fell … . Mamah v New York City Dept. of Educ., 2025 NY Slip Op 02877, First Dept 5-13-25

Practice Point: Another example of how problematic proof of a negative, i.e., proof of a lack of constructive notice of a dangerous condition, can be.

 

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DEFENDANT’S STEPMOTHER COULD NOT CONSENT TO THE SEARCH OF DEFENDANT’S BACKPACK, WHICH WAS IN THE STEPMOTHER’S APARTMENT, BECAUSE THE POLICE KNEW THE BACKPACK BELONGED TO DEFENDANT; AN APPELLATE COURT DOES NOT HAVE JURISDICTION TO AFFIRM A LOWER COURT RULING ON A GROUND NOT RULED ON BY THE LOWER COURT (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined defendant’s motion to suppress a firearm seized from a backpack should have been granted. The police knew the backpack, which was in his stepmother’s apartment, belonged to the defendant. Therefore defendant’s stepmother could not consent to the search. That First Department noted that the arguments raised by the People for the first time on appeal (defendant had abandoned the backpack and the emergency exception to the warrant requirement applied) could not be considered because the lower court did not rule on them (a prerequisite for appellate jurisdiction):

Supreme Court incorrectly denied defendant’s motion to suppress physical evidence recovered from defendant’s bag based on his stepmother’s consent to search her apartment … . The testimony at the hearing was explicit that the officer conducting the search knew that the bag belonged to defendant and not defendant’s stepmother before he picked it up and felt what he believed to be a firearm inside. Therefore, she did not “possess[] common authority over . . . [the] effects sought to be inspected”—here, defendant’s backpack—and could not consent to a search of it … .

While the People argue, in the alternative, that defendant was trespassing and abandoned the bag when he left it in the apartment to surrender himself to the police, they did not advance this argument before the suppression court, and they are foreclosed from doing so now … . The same is true of their argument that search of the bag was permissible under the emergency exception to the warrant requirement … . Furthermore, the hearing court did not rule on these issues in denying suppression, “and therefore did not rule adversely against defendant on this point” … . Thus, this Court “lacks jurisdiction to affirm the denial of defendant’s motion to suppress” the firearm on this alternative ground … . People v Gonzalez, 2025 NY Slip Op 02883, First Dept 5-13-25

Practice Point: Here defendant’s backpack was in defendant’s stepmother’s apartment. The police knew the backpack belonged to defendant. Therefore defendant’s stepmother could not consent to the search of the back pack.​

Practice Point: Here the People sought to affirm the lower court’s denial of the suppression motion on grounds which where not raised or ruled upon by the motion court. The appellate court does not have jurisdiction to affirm on a ground not ruled upon by the lower court.

 

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PLAINTIFF’S TRANSLATED AFFIDAVIT WAS NOT ACCOMPANIED BY THE TRANSLATOR’S AFFIDAVIT AND WAS THEREFORE INADMISSIBLE; THE ROADWAY WHERE THE COLLISION OCCURRED WAS NOT DIVIDED INTO TWO OR MORE CLEARLY MARKED LANES; THEREFORE THE “UNSAFE LANE CHANGE” STATUTE (VEHICLE AND TRAFFIC LAW 1128(A)) DID NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been awarded to plaintiff in this traffic accident case. Plaintiff submitted his affidavit which had been translated but did not submit an affidavit from the translator attesting to the translator’s qualifications and the accuracy of plaintiff’s affidavit. In addition, the roadway where the accident occurred was not divided into two or more clearly marked lanes. Therefore the unsafe-lane-change provision of the Vehicle and Traffic Law did not apply to the facts:

In support of his motion for summary judgment, plaintiff submitted his translated affidavit and dashcam footage from defendants’ vehicle. He argued that defendant driver made an unsafe lane change in violation of Vehicle and Traffic Law § 1128(a), which provides that “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

Plaintiff failed to demonstrate his entitlement to summary judgment. His affidavit, which was not accompanied by an affidavit from a translator attesting to the translator’s qualifications and the accuracy of the affidavit, does not comply with CPLR 2101(b) and is therefore inadmissible … . Even if the affidavit could be considered, the dashcam video does not “conclusively establish” that defendant driver violated Vehicle and Traffic Law § 1128(a) or eliminate issues of fact as to how the accident occurred … .

The dashcam video shows that Zerega Avenue was not divided into lanes in the southbound direction, and that neither vehicle was driving within a “clearly marked” lane of traffic when plaintiff’s vehicle drove up on the right side of defendants’ tractor-trailer. Moreover, the dashcam footage does not establish that defendant driver caused the accident by moving into plaintiff’s lane of traffic when it was not safe to do so. Richards v Walls, 2025 NY Slip Op 02889, First Dept 5-13-25

Practice Point: Where an affidavit submitted to support a summary judgment motion has been translated, it is not admissible unless it is accompanied by the translator’s affidavit attesting the the translator’s qualifications and the accuracy of the translation.

Practice Point: The unsafe-lane-change statute, Vehicle and Traffic Law 1128(a), does not apply unless there are two or more clearly marked lanes of travel.

 

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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff slipped and fell because of the condition of the floor, and not because of the actions of an animal, a cow which plaintiff was walking back to her stall when both he and the cow fell:

The plaintiff, who was working as a farrier, went to the defendant Bobby Wickham’s farm to service his cows. The cement area that the plaintiff had to traverse to transport each cow to and from her stall allegedly was covered with feces and urine. When the plaintiff complained to Wickham that the floor was very slippery, Wickham allegedly stated that he did not have sand to put down on the ground. The plaintiff serviced six or seven cows without incident. While he was working, the plaintiff saw cows slip on the floor. After servicing the cow at issue, the plaintiff was walking the cow back to her stall when he slipped and fell on the floor. The cow then fell on top of the plaintiff’s right foot.

… Wickham moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the sole means of recovery of damages for injuries caused by a domestic animal was upon a theory of strict liability, whereby the plaintiff must establish that the domestic animal had vicious propensities and that the owner knew or should have known of the domestic animal’s vicious propensities, which the plaintiff did not allege here. …

* * * The evidence submitted raised triable issues of fact as to whether the plaintiff allegedly slipped and fell due to the condition of the floor and whether the cow’s subsequent contact with the plaintiff was causally related to the condition of the floor. Gomez v Wickham, 2025 NY Slip Op 02760, Second Dept 5-7-25

Practice Point: Just because a plaintiff’s injuries are caused by an animal, here a cow falling on plaintiff, does not require that plaintiff’s lawsuit be brought under animal law (strict liability based on the animal’s vicious propensities). Plaintiff successfully alleged, under a negligence theory, that both he and the cow fell because of the slippery condition of the floor.

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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