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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff bank failed to demonstrate compliance with the notice requirements of RPAPL 1304 and therefore was not entitled to summary judgment:

The plaintiff … failed to demonstrate, prima facie, its compliance with RPAPL 1304, in that it failed to establish proof of the requisite mailing. The affidavit of Sarah Stonehocker, a vice president of loan documentation for Wells Fargo, the plaintiff’s loan servicer, was insufficient to establish that the notice was sent to the borrowers in the manner required by RPAPL 1304. Stonehocker averred that she had personal knowledge of Wells Fargo’s record-keeping practices and procedures, but she did not attest to having personal knowledge of the record-keeping practices and standard office mailing procedures of Walz Facility (hereinafter Walz), the entity, that according to tracking information printouts, mailed the RPAPL 1304 notices … . Nor did she attest that Walz’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business … . Thus, Stonehocker’s affidavit failed to establish “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … .

Moreover, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 since it failed to demonstrate that it sent an individually addressed RPAPL 1304 notice to each borrower, as required by the statute … . U.S. Bank N.A. v Reddy, 2023 NY Slip Op 05417, Second Dept 10-25-23

Practice Point: Once again the bank’s failure to prove compliance with the mailing requirements of RPAPL 1304 resulted in reversal of summary judgment in this foreclosure action.

 

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DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT IN THIS DRAM SHOP ACT CASE; POINTING TO GAPS IN PLAINTIFF’S PROOF WILL NOT MEET THE BURDEN OF PROOF AT THE SUMMARY JUDGMENT STAGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant in this Dram Shop Act did not present enough evidence to warrant summary judgment, noting that pointing to gaps in plaintiffs’ proof never sufficient:

Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General Obligations Law § 11—101; Alcoholic Beverage Control Law § 65[2]). “[A] defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs’ evidence, but must affirmatively demonstrate entitlement to summary judgment” … .

Although defendant’s manager testified about employee training and practices generally, his testimony regarding the incident at issue—including, inter alia, that he did not know whether any patrons were intoxicated on the date of the alleged incident, that he was not aware of anyone being asked to leave the establishment due to intoxication during the month of the incident, and that defendant did not keep records of intoxicated individuals—failed to carry defendant’s initial burden. Defendant’s further “reli[ance] on plaintiffs’ inability to prove that the assailants were served alcohol or were intoxicated” was similarly insufficient to carry its prima facie burden … . Bauseman v Pamdh Enters. Inc., 2023 NY Slip Op 05355, First Dept 10-24-23

Practice Point: Defendant’s pointing to gaps in plaintiffs’ proof is not be enough to support summary judgment.

 

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PLAINTIFF PASSENGER SUED THE DRIVER WHO STRUCK A CAR FROM BEHIND; PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS NO EVIDENCE THE DRIVER FAILED TO MAINTAIN A SAFE DISTANCE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff passenger was not entitled to summary judgment in this traffic accident case. The defendant, Rodriguez, was driving the car in which plaintiff was a passenger when it stuck another car driven by Espada. Plaintiff did not demonstrate that Rodriguez did not maintain a safe distance from the Espada car. Therefore plaintiff did not make out a prima facie case that Rodriguez was liable for a rear-end collision:

Plaintiff failed to make a prima facie showing that the accident was a rear-end collision resulting from Rodriguez’s failure to maintain a safe distance behind Espada’s vehicle, in violation of Vehicle and Traffic Law § 1129(a) … . Rather, plaintiff testified that Rodriguez’s vehicle came in contact with Espada’s vehicle as Rodriguez was turning into an intersection, and plaintiff did not see the Espada vehicle prior to the accident and did not know if it was moving or stopped at the moment of impact. Absent a showing that Rodriguez negligently struck Espada’s vehicle due to a failure to maintain a safe distance, plaintiff, even as an innocent passenger, was not entitled to summary judgment … . McDowell v Rodriguez, 2023 NY Slip Op 05368, First Dept 10-24-23

Practice Point: To be entitled to summary judgment in a rear-end collision case, the plaintiff must demonstrate the driver did not maintain a safe distance from the car in front.

 

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ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s comparative-negligence affirmative defense should not have been dismissed. Although plaintiff’s comparative negligence is no longer a bar to summary judgment on liability, it is relevant to damages:

Plaintiff was injured when he was struck by the wheelchair ramp of a bus. That bus was owned by defendants and operated by an employee of defendants. The bus operator testified that he deployed the ramp and saw it hit plaintiff. He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”

Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so … . In opposition, defendants did not offer any nonnegligent explanation for the accident … . This accident was not within plaintiff’s exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator … . Defendants’ remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment … .

Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence. At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party … . Prendergast v New York City Tr. Auth., 2023 NY Slip Op 05378, First Dept 10-24-23

Practice Point: Even where a plaintiff is entitled to summary judgment on liability, a defendant’s comparative-negligence affirmative defense remains relevant to damages.

 

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THE REGULATIONS ALLOWING FAMILIAL DNA SEARCHES WERE VALIDLY PROMULGATED; THE REGULATIONS ALLOW DNA SEARCHES WHICH REVEAL THE IDENTITY OF FAMILY MEMBERS OF PERSONS IN THE CRIMINAL DNA DATABASE (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, determined the Commission on Forensic Sciences properly promulgated the Familial DNA Search (FDS) Regulations. The regulations allow DNA searches which may reveal the identity of relatives of a persons whose DNA is in the database. The underlying Article 78 petition was brought by two men, never convicted of a crime, whose brothers were in the DNA database as a result of a felony conviction:

There is no provision in the FDS for an identified relative to be notified and/or challenge the search before law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents … alleging … that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations. * * *

Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” … . Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2023 NY Slip Op 05351, CtApp 10-24-23

Practice Point: The regulations allowing familial DNA searches which reveal the identity of relatives of persons in the criminal DNA database are constitutional. There was an extensive three-judge dissent.

 

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NYPD’S WRITTEN INVENTORY SEARCH PROTOCOL IS CONSTITUTIONAL; HERE THE INVENTORY SEARCH OF THE TRUNK OF DEFENDANT’S VEHICLE TURNED UP A FIREARM (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive dissent, determined the New York City Police Department’s (NYPD’s) written inventory search protocol was constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm from the trunk:

Defendant moved to suppress the firearm, arguing that the NYPD’s inventory search protocol was unconstitutional because it gives officers too much discretion in conducting inventory searches and that the searching officers failed to create a meaningful inventory of defendant’s items. At the suppression hearing, the People introduced the NYPD’s written inventory search protocol as set forth in section 218-13 of the NYPD Patrol Guide. The protocol instructs officers to first “[s]earch the interior of the vehicle thoroughly,” “includ[ing] any area that may contain valuables.” The protocol lists 10 areas within the car that must be searched, such as the glove compartment and trunk, but does not limit the searching officers to those spaces. Second, section 218-13 directs officers to force open the “trunk, glove compartment, etc. only if it can be done with minimal damage” except in particular situations including where officers “[r]easonably suspect that the item contains weapons, explosives, hazardous materials or contraband.” Lastly, the protocol requires officers to remove the valuables from the vehicle and invoice, or “voucher,” the property on a specifically referenced invoice form. Section 218-13 instructs officers to list property of little value inside the vehicle, “within reason,” in their activity log and cross reference the property “to the invoice number covering any valuables removed.” Both officers testified that the purpose of an inventory search is, in part, to secure a defendant’s items. The arresting officer further testified that it is an officer’s duty to safeguard a defendant’s recovered items prior to vouchering the items. People v Douglas, 2023 NY Slip Op 05350, CtApp 10-24-23

Practice Point: Here the NYPD’s written inventory search protocol for vehicles was found constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm. There was an extensive dissenting opinion.

 

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MALPRACTICE TREATING THE INITIAL MEDICAL INJURY AT ANOTHER HOSPITAL IS A FORESEEABLE CONSEQUENCE OF THE INITIAL MEDICAL INJURY (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:

Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23

Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.

 

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FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived defendant of the right to present a defense. The complainant alleged defendant inserted his finger in her vagina and fondled her breasts. A forensic analysis of a vaginal swab and complainant’s underwear revealed the presence of complainant’s saliva and fluids from two unidentified males:

… [T]he legislature enumerated five exceptions to CPL 60.42’s [the Rape Shield Law’s] evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 81 NY2d at 311). “The exceptions . . . recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses” … .

Defendant argues that the forensic evidence was admissible under several of the exceptions set forth in CPL 60.42. We need not address every basis raised because we conclude that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice” (CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning . . . is to summarize the substance or content of the evidence” … . In his motion in limine, defense counsel delineated the findings contained in the forensic reports and explained how they constituted “evidence of something other than . . . defendant having engaged in inappropriate and unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under Williams (81 NY2d at 314). People v Cerda, 2023 NY Slip Op 05305, CtApp 10-19-23

Practice Point: Here the interest-of-justice exception to the Rape Shield Law applied. The majority found that the exclusion of forensic evidence of complainant’s sexual activity (which did not implicate the defendant) violated defendant’s right to put on a defense.

 

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EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.

The Third Department, reversing defendant’s attempted murder and assault convictions, determined expert testimony explaining the effects of a drug taken by the defendant along with alcohol should have been admitted. In addition, an email in which a police officer, who was not at the scene, referred to the defendant’s condition as “highly intoxicated” should not have been excluded as hearsay. If the document had been qualified as a business record, it would have been admissible. The defendant should have been given an opportunity to establish a foundation for the admissibility of the email:

As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” … . The criteria to be used is “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … , however, and the testimony proffered here regarding the effect of combined clonazepam and alcohol use would undoubtedly be useful to a lay jury in assessing “the ability of a defendant to form the intent to commit a crime following drug and alcohol consumption” … . As the Court of Appeals explained when presented with a comparable situation, while “jurors might be familiar with the effects of alcohol on one’s mental state, the combined impact of” alcohol and other drugs “on a person’s ability to act purposefully cannot be said as a matter of law to be within the ken of the typical juror” … . * * *

County Court erred in refusing to allow defendant to question the author of the preliminary investigation report describing defendant as “highly intoxicated” and then declining to admit the document into evidence on hearsay grounds because its author was not present on the night of the incident. Defendant must be afforded an opportunity to establish the proper foundation to qualify the email as a business record within the meaning of CPLR 4518 and, if defendant is successful in that effort, the fact that its author lacked personal knowledge of defendant’s intoxication goes to the weight, not the admissibility, of the statements therein … . People v Mawhiney, 2023 NY Slip Op 05289, Third Dept 10-19-23

Practice Point: Where an issue is beyond the ken of an average juror, here the effect of a drug and alcohol combination on the defendant’s ability to form intent, expert testimony should be admitted.

Practice Point: Here an email by a police officer who was not at the scene of the shooting referred to the defendant as “highly intoxicated.” Although the statement is hearsay, the email may be admissible if it is demonstrated to be a business record.

 

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THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death:

… Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a proximate cause of the decedent’s alleged injuries … . However, … the affirmation of the plaintiff’s expert, wherein the expert opined to a reasonable degree of medical certainty that the defendants’ departures from accepted standards of medical care proximately caused the decedent to die prematurely … , as a result of atherosclerotic cardiovascular disease, was sufficient to raise an issue of fact with respect to causation … . Persuad v Hassan, 2023 NY Slip Op 05279, Second Dept 10-18-23

Practice Point: Here plaintiff alleged defendants’ failure to diagnose decedent’s atherosclerotic cardiovascular disease constituted medical malpractice. Plaintiff’s expert raised a question of fact on causation by asserting the failure to diagnose the disease proximately caused decedent’s premature death.

 

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