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NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate it met the notice requirements of the Real Property Actions and Proceedings Law (RPAPL):

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… [P]laintiff submitted an affidavit of its vice president, who averred that he had reviewed the business records, maintained in the regular course of business by the plaintiff, relating to [the] loan. Based upon his review, he averred that the RPAPL 1304 notice was “sent in accordance with New York RPAPL 1304” on January 10, 2011. This unsubstantiated and conclusory statement was insufficient to establish that the required RPAPL 1304 notice was mailed … by registered or certified mail and also by first-class mail… . Further, since the plaintiff was not an assignee of the mortgage at the time the notice allegedly was served, the basis of the vice president’s knowledge is unclear … .

Moreover, [defendant] raised a triable issue of fact with respect to whether the RPAPL 1303 notice was in the proper form … . Central Mtge. Co. v Abraham, 2017 NY Slip Op 03929, 2nd Dept 5-17-17

FORECLOSURE (NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)

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REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff, seeking payment of a note, did not submit proof of the payment history of the note in admissible form (requirements of the business records exception to the hearsay rule not met). Therefore plaintiff’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s record keeping practices and procedures, and thus failed to lay a proper foundation for the admission of records concerning the payment history under the note … . Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law … . Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927, 2nd Dept 5-17-17

CIVIL PROCEDURE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/DEBTOR-CREDITOR (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.

The Second Department determined defendant doctors’ motion for summary judgment in this orthopedic surgery medical malpractice action was properly granted. Plaintiff’s expert was a radiologist and did not demonstrate familiarity with the standard of care for orthopedic surgeons:

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… [W]here, as here, ” a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … . The plaintiff’s expert, a board-certified radiologist, did not indicate any familiarity with the standards of orthopedic care. Donnelly v Parikh, 2017 NY Slip Op 03731, 2nd pt 5-10-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (EXPERT OPINION, MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)

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DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION.

The Fourth Department held the case in reserve to allow County Court to rule on other issues raised in opposition to defendant’s suppression motion, but specifically found County Court’s ruling the statement was admissible as “spontaneous” was error:

“Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and [the statements were] not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed’ ” … . Such statements must be proven to be “spontaneous in the literal sense of that word as having been made without apparent external cause, . . . [and] it must at least be shown that they were in no way the product of an interrogation environment’ ” … . “Rather, [the statement] must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer” … .

Here, defendant’s statement was provoked or encouraged by the presentation or discussion of evidence suggestive of his criminal conduct, and we thus conclude that it cannot be deemed “spontaneous in the literal sense of that word as having been made without apparent external cause” … . “Although there may be other reasons to justify the denial of defendant’s motion, the only issues that we may consider on this appeal are those that may have adversely affected the appellant’ ” … . We therefore hold this case, reserve decision, and remit the matter to County Court to rule upon any other issues raised by the People in opposition to the motion. People v Ibarrondo, 2017 NY Slip Op 03643, 4th Dept 5-5-17

 

CRIMINAL LAW (DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SUPPRESSION (STATEMENTS, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)/SPONTANEOUS STATEMENTS (CRIMINAL LAW, DEFENDANT’S STATEMENT WAS NOT ADMISSIBLE AS SPONTANEOUS, CASE HELD IN RESERVE TO ALLOW COUNTY COURT TO RULE ON OTHER ISSUES RAISED IN OPPOSITION TO THE SUPPRESSION MOTION)

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AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES.

The Fourth Department, after conducting a weight of the evidence analysis, determined the proof was not sufficient to demonstrate beyond a reasonable doubt that defendant shared the intent of his son who stabbed the victim eight times. Therefore the assault first conviction was reversed. The proof indicated the defendant may have been away from the victim, looking for his dog, when his son stabbed the victim:

Although “all of the elements [of the crime] and necessary findings are supported by some credible evidence,” we conclude that an acquittal would not have been unreasonable … . We therefore must “independently assess all the proof; substitute [our] own credibility determinations for those made by the jury [if necessary]; determine whether the verdict was factually correct; and acquit . . . defendant if [we] are not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt”… . Here, defendant was charged as an accessory, and thus the People had to “prove beyond a reasonable doubt that [defendant] acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime”  … . We conclude that the People failed to prove beyond a reasonable doubt that defendant acted with the requisite mental culpability to commit assault in the first degree by causing serious physical injury to the victim by the use of a dangerous instrument, or that he solicited, requested, commanded, importuned or intentionally aided his son in committing the offense … . People v Farley, 2017 NY Slip Op 03634, 4th Dept 5-5-17

CRIMINAL LAW (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, ACCESSORY LIABILITY, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/ACCOMPLICE, ACCESSORY LIABILITY (AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, AFTER A WEIGHT OF THE EVIDENCE ANALYSIS, THE COURT CONCLUDED THE PROOF DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT DEFENDANT SHARED THE INTENT OF HIS SON, WHO STABBED THE VICTIM EIGHT TIMES)

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PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct and ineffective assistance of counsel (failure to object to the prosecutor’s remarks in summation and failure to object to evidence of defendant’s prior bad acts for which no admissibility ruling was sought):

Here, the prosecutor engaged in misconduct during her closing statement by repeatedly appealing to the jury’s sympathy, asking the jury to do justice and protect the victim by convicting defendant, bolstering the victim’s credibility and injecting the prosecutor’s personal opinions into the trial. Perhaps most egregiously, in arguing that the jury should reject defendant’s testimony that he confessed falsely to the police because he needed to use the bathroom, the prosecutor gave her personal opinion regarding defendant’s credibility by stating that she would sit in her own urine rather than falsely admit that she committed a crime. “We can only conclude herein that the prosecutor’s inflammatory [comments had] a decided tendency to prejudice the jury against the defendant’ “… . Consequently, we conclude that the cumulative effect of the prosecutorial misconduct, which substantially prejudiced defendant’s rights … , requires reversal.

Furthermore, “[i]n light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation” … . Defense counsel also failed to object when the prosecutor introduced evidence of prior bad acts despite having failed to seek a ruling regarding the admissibility thereof, most notably the testimony of a sheriff’s deputy that, months before this incident, defendant stole the victim’s truck and was arrested for driving it while intoxicated while on the way to attack a person with whom he believed the victim was having an affair. Defense counsel also failed to object when the prosecutor cross-examined defendant regarding that issue. Thus, reversal is also required because defense counsel was ineffective in “fail[ing] to object to prejudicial evidence of prior uncharged crimes and bad acts introduced by the prosecutor” … . People v Case, 2017 NY Slip Op 03638, 4th Dept 5-5-17

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/PRIOR BAD ACTS (FAILURE TO OBJECT TO EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS, PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that a police officer’s observation of a license plate and running the registration number through the Department of Motor Vehicles’ (DMV’s) database is not a search. Here the officer did not observe any violation that warranted stopping defendant’s car. When the officer ran the plate number he learned defendant’s registration had been suspended due to unpaid parking tickets. The stop was for that reason alone. The officer ultimately arrested the defendant for Driving While Intoxicated:

As defendant concedes, a driver does not have any reasonable expectation of privacy in the license plate number itself, nor would any expectation in such publicly exposed information be recognized as reasonable by society. We now conclude that a driver has no expectation of privacy in the DMV database information associated with a license plate number. Our Vehicle and Traffic Law provides a comprehensive set of requirements for lawfully operating a vehicle in the State of New York.  * * *

While “a police officer may [not] stop an automobile, arbitrarily chosen from the stream of traffic on a public highway only because of the unusual but irrelevant appearance of the vehicle, solely to examine the motorist’s license and registration” … , defendant’s freedom of movement was never “stopped” until after the officer ran his license plate and obtained probable cause to believe the vehicle was being operated with a suspended registration. We prohibit arbitrary traffic stops because they constitute unreasonable “seizures” of persons in violation of the constitution … . But here, the stop of defendant’s car occurred only after the check had supplied the officer a reason to do so. And while we are mindful of the concerns about license plate checks, “the possibilities of database error and police officer abuse, while real, do not create a legitimate expectation of privacy where none existed before. Government actions do not become Fourth Amendment searches simply because they might be carried out improperly. If an officer does go outside the proper bounds of a license plate search, it is that misconduct that might give rise to a constitutional or statutory violation” … .  People v Bushey, 2017 NY Slip Op 03560, CtApp 5-4-17

 

CRIMINAL LAW (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/EVIDENCE (CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SEARCH AND SEIZURE RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SUPPRESSION (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/STREET STOPS (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/REGISTRATION NUMBER (VEHICLES, CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/DEPARTMENT OF MOTOR VEHICLES (DATABASE CHECK OF VEHICLE REGISTRATION NUMBER, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)

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ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, although testimony by a detective about a phone conversation with defendant’s wife (who had since recanted and avoided testifying) violated defendant’s right to confront witnesses, the diluted strength of the phone-call evidence coupled with the striking of the detective’s testimony preserved the fairness of the trial. Defendant’s wife was a witness to the stabbing of the victim. The victim knew the defendant and identified him as the attacker. Defendant’s wife first told the police defendant was the attacker but later recanted and she could not be found at the time of trial. The detective’s testimony did not identify the wife as the person he talked to on the phone but the jury could have inferred it was she and that she identified the defendant as the attacker. However, since the detective had also talked to the victim, the jury could also have inferred it was the victim’s statement that led the detective to the defendant:

Here, the detective did not expressly state that the wife was a witness and that she had identified defendant as the attacker. While the testimony supported an inference to that effect, there was another countervailing inference —— as discussed above, the detective may have identified defendant as a suspect based on information provided by the victim to the police at the hospital and passed on to the detective once he took the case, but before the detective spoke to the wife. This inference also flowed logically from the victim’s testimony that the wife was with the victim when he was attacked by defendant, particularly because the jury heard this testimony immediately before the detective testified. As such, the jury could reasonably infer that the police knew about the wife from the victim and that his statements, relayed to the detective during the briefing from the Night Watch Unit, led the police to treat defendant as a suspect. Given this context, the testimony was neither powerfully incriminating nor, as the defendant argues, did it alone transform the entire case from that in which the People presented a single eyewitness to a case with two eyewitnesses identifying defendant as the perpetrator. People v Stone, 2017 NY Slip Op 03559, CtApp 5-4-17

CRIMINAL LAW (ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/EVIDENCE (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/HEARSAY (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)

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BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET.

The Second Department determined plaintiff bank failed to demonstrate standing to bring the foreclosure action because the criteria for the business records exception to the hearsay rule were not met:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Kelly Thompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafter BANA), the servicer of the defendant Juliet Willis’s loan on behalf of the plaintiff. Thompson averred, in relevant part, that her affidavit was based upon her review of BANA’s business records, and that upon review of such records, the note was physically transferred to the plaintiff “in or about March 2007.” The plaintiff failed to demonstrate that the records relied upon by Thompson were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thompson, an employee of BANA, did not attest that she was personally familiar [*2]with the plaintiff’s recordkeeping practices and procedures … . Bank of N.Y. v Willis, 2017 NY Slip Op 03468, 2nd Dept 5-3-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/EVIDENCE (FORECLOSURE, STANDING, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/HEARSAY (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)

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WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the warrantless search of a parolee’s empty car and seizure of a firearm by police officers was lawful. Defendant parolee argued only a parole officer, not a police officer, could conduct a lawful search. The Court of Appeals held that a parolee’s reduced expectation of privacy applied irrespective of whether a parole or police officer conducted the search:

In Huntley [43 NY2d 175, 181 …] we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer … . Nevertheless, we concomitantly observed that, “in any evaluation of the reasonableness of a particular search or seizure,” whether undertaken by parole or police officers, “the fact of defendant’s status as a parolee is always relevant and may be critical” … .

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional … . The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant’s vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives’ earlier visit and the warmth of the hood. In light of this tip, taken together with defendant’s reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant’s vehicle was lawful and reasonable … . People v McMillan, 2017 NY Slip Op 03446, CtApp 5-2-17

 

CRIMINAL LAW (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SEARCH AND SEIZURE (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SUPPRESSION (CRIMINAL LAW, (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/PAROLEES (REDUCED EXPECTATION OF PRIVACY, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)

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