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FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined the plaintiff bank failed to satisfy the foundation for the business records exception to the hearsay rule. The bank’s motion for summary judgment should have been denied. Although the affiant (Roesner) stated he was familiar with the successor-in-interest’s record keeping system, he did not allege he was familiar with the plaintiff bank’s record keeping practices and procedures:

Roesner averred, inter alia, that his knowledge of the relevant facts was based on his “examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of the successor in interest to the Plaintiff,” and that he was “familiar with the record keeping systems that [the] successor in interest to the Plaintiff and/or its loan servicer use[d] to record and create information related to the residential mortgage loans that it services.” …

* * * On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law … .

The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s 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”… . Roesner, who was employed by the loan servicer …, did not allege that he was personally familiar with the plaintiff’s record keeping practices and procedures. Thus, Roesner failed to lay a proper foundation for the admission of records concerning the appellant’s payment history… . HSBC Mtge. Servs., Inc. v Royal, 2016 NY Slip Op 05973, 2nd Dept 9-14-16

 

FORECLOSURE (FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FORECLOSURE. FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, (FORECLOSURE. FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER.

The Second Department, modifying Supreme Court, determined striking the answer was too severe a sanction for failure to preserve a video of the underlying incident (spoliation). The court noted that the plaintiff could still prove his case without the video recording. Therefore, an adverse inference jury instruction was an appropriate sanction:

“Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … . However, ” striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct'” and, thus, the courts must ” consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “When the moving party is still able to establish or defend a case, a less severe sanction is appropriate” … . Peters v Hernandez, 2016 NY Slip Op 05983, 2nd Dept 9-14-16

CIVIL PROCEDURE (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/EVIDENCE (SPOLIATION, FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/SPOLIATION (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)

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SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF.

The Second Department, in a dispute among business partners, determined certain motions for summary judgment should not have been granted. The court explained that summary judgment cannot rest on gaps in the opposing party’s proof. A defendant bringing the motion must make out a prima facie case by addressing every issue raised in the pleadings. Where every issue is not addressed with substantive proof, the motion must be denied without reference to the opposing papers:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . In this case, the individual defendants failed to affirmatively demonstrate, prima facie, that they did not breach any fiduciary duty owed to the plaintiffs during the course of all of the transactions or occurrences described in the amended complaint … . Similarly, the individual defendants failed to affirmatively establish, prima facie, that the plaintiffs did not sustain any damages as a result of their alleged misconduct … .

Furthermore, the submissions of the individual defendants were insufficient to establish, prima facie, that the application of the business judgment rule protected all of the transactions or occurrences described in the amended complaint from judicial scrutiny. * * * The individual defendants’ representations that all of the challenged conduct outlined in the amended complaint was performed in furtherance of the Partnership’s legitimate interests were conclusory, unsubstantiated, and, without more, amounted to bare legal conclusions that were insufficient to establish that the business judgment rule barred judicial inquiry into these matters … . Katz v Beil, 2016 NY Slip Op 05977, 2nd Dept 9-14-16

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, EVIDENCE, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/SUMMARY JUDGMENT (SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)

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HOMEOWNERS ASSOCIATION’S EXERCISE OF RIGHT OF FIRST REFUSAL PROPER UNDER THE BUSINESS JUDGMENT RULE.

The Second Department determined Supreme Court properly rejected plaintiffs’ challenge of defendant homeowners association’s exercise of a right of first refusal. Plaintiffs had entered a purchase contract for a home within the association, but, pursuant the provisions of the purchase contract and the association’s declaration and restrictive covenants (Declaration), the association purchased the property. Applying the business judgment rule, the Second Department held the association had the authority to purchase the home:

In reviewing the actions of a homeowners’ association, a court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the association … . The business judgment doctrine does not apply when a board acts outside the scope of its authority … . * * *

The contract … specifically provided that the purchaser acknowledged that the transaction was subject to the waiver, or deemed waiver, of the right of first refusal held by the Association as set forth in the Declaration. Further, the Board, on behalf of the Association, exercised the right of first refusal within the time period set forth in the Declaration. 19 Pond, Inc. v Goldens Bridge Community Assn., Inc., 2016 NY Slip Op 05979, 2nd Dept 9-14-16

REAL ESTATE (HOMEOWNERS ASSOCIATION’S EXERCISE OF RIGHT OF FIRST REFUSAL PROPER UNDER THE BUSINESS JUDGMENT RULE)/EVIDENCE (HOMEOWNERS ASSOCIATION’S EXERCISE OF RIGHT OF FIRST REFUSAL PROPER UNDER THE BUSINESS JUDGMENT RULE)/BUSINESS JUDGMENT RULE (HOMEOWNERS ASSOCIATION’S EXERCISE OF RIGHT OF FIRST REFUSAL PROPER UNDER THE BUSINESS JUDGMENT RULE)

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CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE.

The Second Department determined plaintiffs’ cross-motion for summary judgment, based upon the doctrine of res ipsa loquitur, was properly denied in this slip and fall case. Plaintiffs alleged defendant operated a sprinkler in December which caused the icy condition. The court explained the res ipsa loquitur doctrine can rarely be applied as a matter of law. Here the plaintiffs were unable to show that the injured plaintiff did not take a voluntary action which contributed to her injury:

In support of that branch of their cross motion which was for summary judgment on the issue of liability, the plaintiffs relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident … . Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … . Giantomaso v T. Weiss Realty Corp., 2016 NY Slip Op 05972, 2nd Dept 9-14-16

NEGLIGENCE (CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/EVIDENCE (NEGLIGENCE, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/RES IPSA LOQUITUR (SUMMARY JUDGMENT, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)

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SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT.

NEGLIGENCE, EVIDENCE.

The Second Department affirmed the grant of defendants’ motion for summary judgment in a slip and fall case. The presence of a 1 1/2 inch deep hole in a sidewalk, larger than a silver dollar, with cracks radiating from the hole, was not sufficient to demonstrate the defect existed long enough to give defendants notice of it:

An employee of the restaurant in charge of its day-to-day operations testified at his deposition that he did not observe any defects … . Further, the plaintiff’s deposition testimony established that, although she had visited the restaurant at least 10 times in the year preceding her accident, she had never observed the alleged sidewalk defect prior to her accident. She described the defect which caused her to fall as cracks radiating from a hole 1½ inches deep, with a diameter larger than a silver dollar. That description, did not, by itself, indicate that the alleged defect was present for a sufficient length of time to give the defendants constructive notice of its existence. Gallway v Muintir, LLC, 2016 NY Slip Op 05971, 2nd Dept 9-14-16

NEGLIGENCE (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)/SLIP AND FALL (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)/SIDEWALKS (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)

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LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant landowners were entitled to summary judgment dismissing the common law negligence complaint brought by a worker injured constructing a gazebo in the landowners’ backyard. The court explained that the defendant had properly addressed and negated both theories of liability raised in the complaint, i.e. liability stemming from supervision of the work and liability stemming from a dangerous condition:

Landowners and general contractors have a common-law duty to provide workers with a reasonably safe place to work … . To be held liable for common-law negligence for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the means and methods of the plaintiff’s work … . Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable for common-law negligence if it ” either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging common-law negligence is obligated to address the proof applicable to both liability standards … . A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Wejs v Heinbockel, 2016 NY Slip Op 05989, 2nd Dept 9-14-16

NEGLIGENCE (LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EVIDENCE (NEGLIGENCE, SUMMARY JUDGMENT, LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted in this vehicle-collision case.  Credibility issues can not be resolved at the summary judgment stage:

It is not the court’s function on a motion for summary judgment to assess credibility … . Issue finding, rather than issue determination, is the court’s proper function on such a motion … . Thus, a motion for summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” … .

Here, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. In support of their motion, the defendants submitted evidence including transcripts of the deposition testimony of both the plaintiff and the defendant driver. In those transcripts, the parties gave differing accounts of the manner in which the accident occurred, and issues of fact and credibility were presented which could not be resolved on a motion for summary judgment. Given these issues, the defendants failed to establish their prima facie entitlement to judgment as a matter of law … . Chimbo v Bolivar, 2016 NY Slip Op 05969, 2nd Dept 9-14-16

 

NEGLIGENCE (SUMMARY JUDGMENT, COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/SUMMARY JUDGMENT (COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/EVIDENCE (SUMMARY JUDGMENT, COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)

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PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT.

The First Department, with a two-justice concurring memorandum, determined conflicting testimony raised questions of fact about whether a safety harness was available and whether the scaffold was defective. Plaintiff was not wearing a harness when he attempted to move from the roof to a scaffold and fell. With respect to the scaffold, the court noted that plaintiff’s allegedly inconsistent accounts of the cause of the fall raised a question of fact:

According to plaintiff, as he attempted to swing down from the roof to the scaffold, a wire attaching the scaffold to the building snapped, causing the scaffold to swing away from the wall and resulting in plaintiff’s fall to the ground below. The foreman, however, testified that, in conversation after the accident, plaintiff had admitted to him that he fell because his foot had slipped as he stepped onto the scaffold from the roof, without mentioning any movement of the scaffold. These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, are inconsistent with each other and give rise to an issue of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of § 240(1). As this Court recently noted, “[W]here a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident” … . Albino v 221-223 W. 82 Owners Corp., 2016 NY Slip Op 05953, 1st Dept 9-8-16

LABOR LAW (PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)/EVIDENCE (LABOR LAW, PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)

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NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME.

The Second Department reversed defendant’s drug conspiracy conviction. Although there was proof a person with defendant’s name was part of the conspiracy, there was no proof defendant was that person:

We find that defendant Mohammed’s conviction was not supported by legally sufficient evidence. In determining whether the jury’s verdict is supported by legally sufficient evidence, the reviewing court must decide “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial, and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” … , including the identity of the defendant who committed the crime charged … . While there was sufficient evidence to show that a person by the name of Habiyb Mohammed took part in the conspiracy, the record is devoid of any identification of defendant Mohammed to be that same Habiyb Mohammed. People v Brown, 2016 NY Slip Op 05940, 1st Dept 9-1-16

CRIMINAL LAW (NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME)/EVIDENCE (CRIMINAL LAW, (NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME)

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