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BECAUSE THE ALLONGE ENDORSED IN BLANK WAS NOT FIRMLY AFFIXED TO THE NOTE AS REQUIRED BY THE UCC, THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate iT had standing to bring the action. The purported allonge endorsed in blank was not attached to the note:

 “A plaintiff may establish … its standing as the holder of the note by demonstrating that a copy of the note, including an endorsement in blank, was among the exhibits annexed to the complaint at the time the action was commenced” … . “A promissory note [is] a negotiable instrument within the meaning of the Uniform Commercial Code” ( … see UCC 3-104[2][d]). A “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b][21][A]; see 3-301 … ). Where an instrument is endorsed in blank, it may be negotiated by delivery (see UCC 3-202[1]; 3-204[2] …). “An indorsement must be . . . on the instrument or on a paper so firmly affixed thereto as to become a part thereof” (UCC 3-202[2]).

… [T]he plaintiff failed to make a prima facie showing that it had standing to commence the action. Although the plaintiff attached a copy of the note and a purported allonge endorsed in blank to the complaint, the plaintiff failed to demonstrate that the purported allonge “was so firmly affixed [to the note] as to become a part thereof, as required by UCC 3-202(2)” … . Moreover, an affidavit of an assistant secretary of the plaintiff’s servicer/attorney-in-fact, submitted in support of the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, was also insufficient to demonstrate the plaintiff’s compliance with UCC 3-302(2), as it was bereft of any reference to the purported allonge … . Lakeview Loan Servicing, LLC v Florio, 2024 NY Slip Op 04256, Second Dept 8-21-24

Practice Point: The UCC requires that an allonge endorsed in black be firmly affixed to the note.​

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS INADMISSIBLE HEARSAY BECAUSE THE BUSINESS RECORDS UPON WHICH THE REPORT WAS BASED WERE NOT PRODUCED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the business records on which the referee’s calculations were based were not attached to the referee’s affidavit, rendering the affidavit hearsay:

… [T]he referee’s report was based upon her review … of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due, which listed the amount due to the plaintiff. However … the affidavit constituted inadmissible hearsay and lacked probative value because the affiant failed to produce the business records purportedly relied upon in making her calculations … . Countrywide Home Loans Servicing, L.P. v Weberman, 2024 NY Slip Op 04240, Second Dept 8-21-24

Practice Point: An affidavit which purports to rely on records which are not attached is inadmissible hearsay.

 

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ALTHOUGH THE SEXUAL ABUSE COUNT WAS FACIALLY VALID, THE VICTIM’S TESTIMONY RENDERED THE COUNT DUPLICITIOUS, REQUIRING REVERSAL ON THAT COUNT (THIRD DEPT).

The Third Department, reversing defendant’s conviction of one count of sexual abuse, determined, although the count was facially valid, it was rendered duplicitous by the victim’s testimony:

The evidence relative to these charges derived mostly from the victim’s trial testimony, wherein she revealed that she and defendant lived in the same household during the relevant time frame and he touched her inappropriately on several occasions while in the basement of the residence. With respect to count 2, when asked on direct examination whether defendant had his clothes on, the victim answered that he would “sometimes . . . take off his shirt” and “sometimes he would have no shirt on at all” … . The prosecutor then asked the victim whether she remembered “more than one time that [defendant] didn’t have a shirt on” and she stated: “I remember one time that he did not have his shirt on.” On cross-examination, defense counsel asked the victim whether it was true that there were multiple times defendant “took his shirt off,” to which she responded in the affirmative. She then explained that “[i]t was at least two” times and repeated this again when confronted with the fact that, during her grand jury testimony, she stated that defendant had taken his shirt off only once, clarifying that she “meant to say two.”

… Where, as here, “trial testimony provides evidence of repeated acts that cannot be individually related to specific counts in the indictment, the prohibition against duplicitousness has been violated” … . People v McNealy, 2024 NY Slip Op 04230, Third Dept 8-15-24

Practice Point: Where an indictment court charges one incident and the trial testimony indicates there were multiple similar incidents, it is impossible to tell whether the jury was unanimous in convicting under that count. The count was rendered duplicitous by the trial testimony, requiring reversal. 

 

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ONCE AGAIN, BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO THE AFFIDAVITS, THE STATEMENTS IN THE AFFIDAVITS WERE HEARSAY; PLAINTIFF BANK DID NOT PROVE STANDING TO FORECLOSE OR DEFENDANT’S DEFAULT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not prove standing and did not prove defendant’s default because the relevant business records were not attached to the relevant affidavits (yet another of the hundreds of reversals on this issue):

… “‘[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . Thus, “[w]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . In addition, “‘[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, neither affidavit relied upon by the plaintiff to establish its physical possession of the note stated that the affiant had personal knowledge of … the plaintiff’s record-keeping practices, and the affiants did not annex the records that they relied upon to their affidavits. Thus, the affidavits were inadmissible hearsay lacking in evidentiary value.

Likewise, without the submission of the business records upon which she relied, Ballard’s assertions regarding the defendant’s alleged default on the loan were inadmissible … . HSBC Bank USA, N.A. v Pacifico, 2024 NY Slip Op 04198, Second Dept 8-14-24

Practice Point: If the business records described in an affidavit are not attached, the statements in the affidavit about the records are inadmissible hearsay.

 

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A SORA RISK LEVEL ASSESSMENT SHOULD INCLUDE THE POTENTIAL FOR REHABILITATION; HERE PSYCHOLOGICAL EVIDENCE AND EVIDENCE OF FAMILY SUPPORT WARRANTED A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reducing defendant’s SORA risk level from two to one, in a full-fledged opinion by Justice Garry, over an extensive dissent, determined the psychological evidence, evidence of family support, and evidence of defendant’s long-term relationships warranted the downward departure. The nature and weight of the psychological evidence, including test results, is discussed in depth:

Defendant attended college in New Hampshire but left early and did not graduate as a result of grief stemming from the loss of multiple family members. He thereafter remained in New Hampshire and worked as a soccer coach at a local high school. In 2019, defendant cultivated a short-term sexual relationship with a 14-year-old student whom he was coaching; alcohol was involved. He ultimately pleaded guilty in New Hampshire to four counts of felonious sexual assault, and misdemeanor charges related to the provision of alcohol. * * *

The potential for rehabilitation should be recognized and considered in judicial review and imposition of SORA restrictions. As has been stated, “our application of SORA and its [g]uidelines holds the promise of the recognition of rehabilitation so as to incentivize a sex offender to achieve that which this defendant has achieved” … ; this quote applies in full measure here. Through his submission of multiple psychometric test results, expert opinions and expressions of familial support, defendant has demonstrated the presence of multiple mitigating factors not considered by the guidelines. The totality of the circumstances indicate defendant poses a low risk of reoffending. Thus, in the exercise of our independent discretion, to avoid imposing lifetime and very public restrictions of a risk level two offender upon this young defendant (see Correction Law §§ 168-h [1]-[2]; 168-i; 168-l [6] [a]-[b]; 168-q [1]), we grant his motion for a downward departure and classify him as a risk level one sex offender subject to the applicable restrictions, for the requisite 20-year period … . Essentially, where we depart from the dissent is in our willingness to more fully consider the degree of evidence of rehabilitation and the resulting diminished potential for future criminal conduct. People v Waterbury, 2024 NY Slip Op 04169, Third Dept 8-8-24

​Practice Point: Here defendant presented expert psychological testimony, the results of psychological tests and evidence of strong family support at the SORA risk-level-assessment hearing. On appeal the Third Department found the evidence should have been considered by the SORA court because it demonstrated a potential for rehabilitation.

 

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IN A MED MAL CASE, AN EXPERT AFFIDAVIT WHICH MAKES ASSERTIONS UNSUPPORTED AND BELIED BY THE RECORD AND, FOR THE FIRST TIME, ASSERTS ISSUES NOT ENCOMPASSED BY THE COMPLAINT OR BILL OF PARTICULARS, DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined the plaintiffs’ expert did not raise a question of fact on whether the defendants (the Golden defendants) met the appropriate standard of care in this medical malpractice action:

Opinion evidence must be based on facts in the record. An expert cannot speculate, guess, or reach their conclusion by assuming material facts not supported by the evidence. The opinion must be supported either by facts disclosed by the evidence or by facts known to the expert personally. It is essential that the facts upon which the opinion is based be established, or fairly inferable, from the evidence … .

Here, the Golden defendants’ expert’s affirmation, which is based on information contained in the relevant medical records and deposition testimony, established prima facie their entitlement to summary judgment. In opposition, plaintiffs’ expert affirmations as pertain to the Golden defendants are refuted by the medical records and deposition testimony … , do not specifically controvert the opinion of defendants’ expert … , are conclusory and speculative, and fail to raise a triable issue of fact … .

An expert’s affirmation that sets forth general conclusions, misstatements of evidence, and unsupported assertions, and which fails to address the opinions of defendant’s expert, is insufficient to defeat summary judgment … . As is one which raises for the first time in opposition to summary judgment a new theory of liability that has not been set forth in the bills of particulars or in the complaint … . Plaintiffs’ expert affirmations state for the first time in opposition to summary judgment that the Golden defendants departed from accepted practice when, after learning that decedent’s headache had lasted from two to four days, Dr. Golden failed to refer him to the emergency room for a CT scan. This theory is neither in plaintiffs’ complaints nor bills of particulars; is speculative, conclusory, and contradicted by the record; and should not have been considered by Supreme Court … . Cabrera v Golden, 2024 NY Slip Op 04112, First Dept 7-31-24

Practice Point: Many med mal decisions reject without explanation expert opinion affidavits which are deemed “speculative” or “conclusory.” This opinion provides insight into the meaning of those terms.

 

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THE BANK DID NOT DEMONSTRATE IT WAS THE HOLDER OR ASSIGNEE OF THE NOTE AT THE TIME THE ACTION TO RECORD THE MORTGAGE WAS BROUGHT; THE BANK DID NOT HAVE STANDING TO BRING THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing in 2017 to record a mortgage securing a note issued in 2008:

A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the . . . action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … . “[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery” .. .

Here, the affidavits of Fernandez were insufficient to establish the plaintiff’s standing to record the mortgage. Although Fernandez’s second affidavit provided a proper foundation for the admission of business records, and attached a business record … , “[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . The business record attached to Fernandez’s second affidavit failed to establish, prima facie, that the plaintiff had possession of the note prior to commencing the instant action, as it failed to mention the defendant or otherwise identify the note to which it was referring. Moreover, the business record identifies itself merely as a “Certification.” It does not state when the note was either delivered to or assigned to the plaintiff. Bayview Loan Servicing, LLC v Healey, 2024 NY Slip Op 04054, Second Dept 7-31-24

Practice Point: Here the note was issued in 2008 and plaintiff bank sought to record the mortgage in 2017. The bank did not have standing to record the mortgage because it did not present proof it was the holder or assignee of the note when the action was brought.​

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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DEFENDANT WAS ACQUITTED OF MENACING AT THE FIRST TRIAL BUT THE EVIDENCE SUPPORTING THE MENACING CHARGES WAS ALLOWED IN THE SECOND TRIAL; THE COLLATERAL ESTOPPEL DOCTRINE PRECLUDED PRESENTATION OF THAT EVIDENCE IN THE SECOND TRIAL; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s acquittal of menacing in his first trial precluded evidence defendant displayed a firearm during a confrontation in the second trial:

At his second trial, the People were permitted to introduce in their case-in-chief, over defendant’s objection, the testimony of an eyewitness that, during a confrontation in a park that occurred prior to the shooting, defendant had pulled out a gun and waved it at the victim, and had cocked the gun and pointed it at the eyewitness. We agree with defendant that, under the circumstances here, the People were collaterally estopped by the earlier verdict from presenting evidence at defendant’s second trial concerning the alleged display of a gun during the earlier confrontation at the park … .

The doctrine of collateral estoppel “operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” … . “[W]here the People have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place” … . Only those facts that were “necessarily decided” by a prior acquittal will have collateral estoppel effect in a subsequent prosecution … . Although it may “normally be impossible to ascertain the exact import of a verdict,” we are charged with giving “a practical, rational reading to the record of the first trial” to determine “whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration” … .

Here, the two menacing counts alleged that defendant intentionally placed or attempted to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying what appeared to be a firearm, on the basis of his alleged actions at the park shortly before the murder. The eyewitness’s testimony at the first trial was the only evidence supporting the menacing counts. People v Moore, 2024 NY Slip Op 03941, Fourth Dept 7-26-24

Practice Point: Evidence supporting charges of which defendant was acquitted in the first trial cannot be presented in the second trial.

 

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THE PEOPLE DID NOT DEMONSTRATE DUE DILIGENCE IN ASCERTAINING THE EXISTENCE OF A FORENSIC REPORT AND DISCIPLINARY RECORDS; TURNING THEM OVER UPON DISCOVERING THEM AND SUMBITTING A SUPPLEMENTAL CERTIFICATE OF COMPLIANCE (COC) DID NOT CURE THE OMISSION (FOURTH DEPT).

The Fourth Department determined the People did not meet their burden of demonstrating compliance with their discovery obligations before filing the Certificate of Compliance (COC):

… [W]e conclude that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the July 2022 COC … . The People failed to put forward any evidence of their efforts “to ascertain the existence” of either the forensic report or the disciplinary records prior to filing the July 2022 COC (…CPL 245.50 [1]). Rather, the People’s submissions established that, after they became aware of the materials’ existence, they promptly provided them to defense counsel—an assertion that is undisputed. As the Court of Appeals stated in Bay, “post-filing disclosure and a supplemental COC cannot compensate for a failure to exercise diligence before the initial COC is filed” … . We note in particular that the forensic report was completed more than six months before, upon the case being assigned to a new prosecutor, it was discovered and provided …  . People v Baker, 2024 NY Slip Op 04006, Fourth Dept 7-26-24

Practice Point: The People must demonstrate due diligence in ascertaining the existence of discovery material. It is not enough to quickly turn them over upon becoming aware of their existence.

 

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