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THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT WAS INADEQUATE AND THE NOTICE DID NOT INCLUDE A STATEMENT REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The Frist Department, reversing Supreme Court in this foreclosure action, determined compliance with the notice-of-foreclosure requirements in the mortgage as well land the notice requirements imposed the RPAPL 1304 was not demonstrated. Plaintiff should not have been awarded summary judgment:

… [N]either the affidavits nor the business records made the requisite demonstration of mailing as required by the mortgage agreement … . Although one of Serterus’s [the mortgage servicer’s] employees stated that Serterus followed the prior mortgage servicer’s procedures for mailing the default notice, she stated only that she had personal knowledge of Serterus’s recordkeeping practices and procedures, not that she had personal knowledge that the notice of default was actually mailed. Nor did the employee attest to her familiarity with the mailing procedures of either Chase, which the default notice identified as the sender, or its servicer … . Although the employee stated that records of the mailing were attached, the only record of mailing of the notice was the notice itself, which contained no information about whether and when it was mailed. Similarly, the affidavit by the other Serterus employee lacked any indication of how she concluded that the contractual default notice was, in fact, sent. In addition, defendant submitted an affidavit denying ever having received the notice … .

Further, service of the 90-day notice pre-foreclosure notice required by RPAPL 1304 did not comply with the requirement of service of the default notice required under the mortgage agreement. The mortgage agreement required that the default notice thereunder inform the defendant borrower that if the default was not cured by the date stated in the notice, the lender may require immediate payment in full. However, the RPAPL 1304 notice contains no such statement. Federal Natl. Mtge. Assn. v Adago, 2023 NY Slip Op 04717, First Dept 9-26-23

Practice Point: Proof of compliance with the notice-of-foreclosure requirements in the mortgage as well as the notice requirements imposed by RPAPL 1304 are prerequisites to foreclosure.

 

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PLAINTIFF PEDESTRIAN WAS IN THE CROSSWALK WHEN PLAINTIFF’S CAR MADE A LEFT TURN AND STRUCK PLAINTIFF FROM BEHIND; PLAINTIFF WAS NOT COMPARATIVELY NEGLIGENT FOR FAILING TO SEE DEFENDANT’S CAR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff pedestrian was entitled to summary judgment in this traffic accident case. Plaintiff was in the crosswalk when defendant made left turn and struck plaintiff from behind. Plaintiff could not be held comparatively negligent for failing to see and avoid the defendant‘s vehicle:

Plaintiff pedestrian established prima facie entitlement to judgment on liability as a matter of law by submitting evidence demonstrating that she was crossing Broadway, within the crosswalk, with a “walk” sign in her favor, after looking both ways, when defendant’s vehicle, which was making a left turn onto Broadway, struck her from behind on her right side, pinning and dragging plaintiff under the vehicle and causing severe injuries to her right leg … . Plaintiff’s version of the accident is supported by the police report showing damage solely to the front driver side of the defendant’s vehicle following the accident and the medical reports and photographs showing the injuries to plaintiff’s right leg.

A plaintiff, who is struck by a vehicle that approaches from behind and to the right after turning left into the crosswalk where it struck plaintiff, may not be held comparatively negligent based on a theory that she could have seen and avoided the vehicle through the exercise of ordinary care … Shin v Ljulja, 2023 NY Slip Op 04740, First Dept 9-26-23

Practice Point: Plaintiff pedestrian in a crosswalk was not comparatively negligent for not seeing defendant’s car making a left turn and striking plaintiff from behind.

 

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THE BOARD’S FINDINGS ON THE EXTENT OF PETITIONER’S DISABILITY WERE NOT SUPPORTED BY THE MEDICAL EVIDENCE SUBMITTED TO THE BOARD; REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s findings about the extent of petitioner’s disability were not based on the medical evidence presented at the hearing:

Inasmuch as “it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained” … . ” ‘Since this Court has limited power to review the sufficiency of evidence and lacks the ability to weigh conflicting proof’ ” … , we cannot ascertain what decision the Board would have reached had it accurately reviewed the reports and testimony that were before it, and, therefore, the matter must be remitted to the Board for further proceedings so that a proper assessment of the evidence can occur … . Matter of Ayars v Navillus Tile Co., 2023 NY Slip Op 04691, Third Dept 9-21-23

Practice Point: If the Workers’ Compensation Board’s findings on the extent of the worker’s disability are not supported by the medical evidence submitted to the Board, the determination must be reversed.

 

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISION IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and did not demonstrate it complied with the notice-of-default requirement in the mortgage:

… [T]he plaintiff failed to establish … that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and three undated purported allonges, one of which was endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were each on a piece of paper completely separate from the note and the other allonges, were “so firmly affixed” to the note “as to become a part thereof,” as required by UCC 3-202(2) … .

Additionally, the plaintiff failed to establish its status as the holder of the note at the time of the commencement of the action. In her affidavit, a representative employed by the plaintiff’s loan servicer did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures, and therefore, the plaintiff failed to demonstrate that the records relied upon by the affiant were admissible under the business records exception to the hearsay rule … .

The plaintiff also failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . U.S. Bank N.A. v Yoel, 2023 NY Slip Op 04682, Second Dept 9-20-23

Practice Point: If the defendant in a foreclosure action alleges the bank lacks standing to bring the action, the bank must demonstrate it was the holder of the note at the time the action was brought. In addition, the UCC requires that allonges endorsed in blank be “firmly affixed” to the note.

 

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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:

Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .

However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23

Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.

 

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THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:”

“Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” … .

In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Further, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,” dismissal should not eventuate … .

Here, contrary to the defendants’ contention, an affidavit from Rallye’s employee, who averred that Rallye’s vehicle was in good working condition at the time it allegedly was rented to Orphanides [the defendant driver], did not show that the plaintiff’s allegation of negligent maintenance on the part of Rallye was not a fact at all … . Holmquist v Orphanides, 2023 NY Slip Op 04660, Second Dept 9-20-23

Practice Point: In the context of a motion to dismiss, an affidavit stating that the leased car involved in the accident was in good working order will not, pursuant to the Graves Amendment, defeat a complaint which alleges the leased car was negligently maintained  The affidavit does not establish the negligent-maintenance allegation is “not a fact at all.”

 

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DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WAS PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after the fall as part of a routine procedure. Defendant did not have notice of a potential lawsuit at the time the video was overwritten:

“‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” … . “‘A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” … .

… The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten … . The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant’s normal business practices.

… [D]efendant’s preservation of only a portion of the surveillance footage does not indicate a culpable state of mind … as the defendant’s representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident consistent with ordinary business practices. The assistant principal’s affidavit was also sufficient to provide the court with a “basis to find that the search for [the surveillance footage] had been a thorough one [and] that it had been conducted in a good faith effort to provide [the surveillance footage] to the plaintiff” … . Similarly, no evidence indicates that the defendant was negligent in failing to preserve the additional surveillance footage … . Moreover, the plaintiff did not demonstrate that the defendant’s failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim … . M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651, Second Dept 9-20-23

Practice Point: After video of the fall and a few seconds before and after the fall was preserved by the defendant, the remainder of the video was overwritten in accordance with usual procedure. Defendant was not on notice of a potential lawsuit when the video was overwritten. In the absence of evidence of bad faith, defendant’s answer should not have been struck for spoliation of evidence.

 

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CONFLICTING EVIDENCE ABOUT WHETHER DEFENDANT WAS MADE AWARE OF THE DANGEROUS CONDITION PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education (DOE) did not demonstrate a lack of constructive knowledge of the condition of a cart used by plaintiff teacher to move materials out of a classroom. The cart stopped suddenly and the plaintiff’s foot was injured. There was conflicting evidence about whether plaintiff and others had made the DOE aware of the defective condition of the cart:

… [T]he defendants failed to establish, prima facie, that the DOE did not have constructive notice of the allegedly dangerous condition of the cart that caused the plaintiff’s injuries. In support of their motion, the defendants submitted, among other things, a transcript of the plaintiff’s deposition testimony. At her deposition, the plaintiff testified that in September 2015, approximately five months before she was injured, she complained about the condition of the cart to the school principal. The plaintiff further testified that in January 2016, approximately one month before the accident, her supervisor, an assistant principal at the school, observed the plaintiff “struggling” to use the cart, which “wasn’t working properly.” According to the plaintiff, her supervisor advised that she would speak with the principal about the issue. The DOE also submitted a transcript of the deposition testimony of the plaintiff’s supervisor, who testified that prior to the accident, she did not recall the plaintiff making any complaints specifically about the condition of the cart. This conflicting testimony raised triable issues of fact as to credibility and whether the DOE had constructive notice of the allegedly dangerous condition of the cart … . Rossi v City of New York, 2023 NY Slip Op 04607, Second Dept 9-13-23

Practice Point: Plaintiff, a teacher, alleged she was injured when a cart used to move materials stopped suddenly. There was conflicting evidence whether defendant had been made aware of the defective condition of the cart. Therefore defendant was not entitled to summary judgment.

 

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​DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm):

… [T]he defendants’ motion papers sufficiently demonstrated that the production of the plaintiff’s cell phone for the inspection and collection of geographical data recorded on the device on the date of the accident may result in the disclosure of relevant evidence and was reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim … . The affidavit of the defendants’ forensic expert demonstrated, among other things, that the plaintiff’s cell phone would have recorded data regarding the plaintiff’s speed and location before and at the time of the accident, which, under the particular circumstances presented, was relevant to the plaintiff’s contention that the defendant driver was negligent in the operation of his vehicle … .

The Supreme Court, however, improvidently exercised its discretion in failing to limit the defendants’ inspection and collection of geographical data recorded on the plaintiff’s cell phone on the date of the accident. Under the circumstances, the defendants’ inspection and collection of geographical data from the plaintiff’s cell phone shall be limited to such data recorded between 1:00 p.m. and 4:00 p.m. on the date of the accident … .  Pulgarin v Richmond, 2023 NY Slip Op 04605, Second Dept 9-13-23

Practice Point: Apparently a cell phone in a car records speed and location data which is discoverable in a traffic accident case.

 

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