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THE PROOF THE FORECLOSURE NOTICE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage company in this foreclosure action did not demonstrate compliance the the notice requirements of RPAPL 1304:

… [T]he copy of the notice contains no indication that it was sent by registered or certified mail, or by first-class mail … . Nor is there “[a] copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute” … . … [The affiant] did not attest to having any personal knowledge of, or familiarity with, [the company’s] actual standard mailing procedures during the relevant time period, which were designed to ensure that items are properly addressed and mailed … . Accordingly, [the affiant’s] assertion in his affidavit that the RPAPL 1304 notice was sent to the defendant on March 14, 2013, at the address of the mortgaged premises, “by registered or certified and first-class mail,” was unsubstantiated and conclusory … . Ditech Servicing, LLC v McFadden, 2023 NY Slip Op 03452, Second Dept 6-28-23

Practice Point: Yet another instance of the failure to prove the notice of foreclosure was mailed in accordance with RPAPL 1304.

 

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PLAINTIFF STATED A CLAIM FOR LEGAL MALPRACTICE BASED UPON THE ATTORNEYS’ ALLEGEDLY UNREASONABLE DELAYS IN PROSECUTING AN ACTION AGAINST A CONTRACTOR, RESULTING IN THE INABILITY TO COLLECT THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging legal malpractice should not have been dismissed. Plaintiff alleged the attorneys’ delays in prosecuting the action against a contractor resulted in plaintiff’s inability to collect a judgment against the contractor. By the time the judgment was acquired, the contractor had sold its assets and moved out of the country:

… [A]ccepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor … . Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory … . Ofman v Tenenbaum Berger & Shivers, LLP, 2023 NY Slip Op 03471, Second Dept 6-28-23

Practice Point: Here the complaint stated a legal malpractice claim based upon the attorneys’ alleged unreasonable delays in prosecuting an action against a contractor, resulting in the inability to collect the judgment. The contractor sold its assets and moved out of the country.

 

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SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined plaintiff’s surgery, even after a defense request for a pre-surgical physical exam, is not spoliation of evidence and does not trigger sanctions. In this traffic accident case, plaintiff underwent surgery before the action was commenced and again after a defense demand for a pre-surgery medical exam:

… [T]he First Department has recently rejected the proposition that a spoliation analysis can apply in such a situation. In Gilliam v Uni Holdings, LLC (201 AD3d 83), the First Department held “that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis” … . After noting that “[s]poliation analysis has long been applied to a party’s destruction of inanimate evidence,” the First Department concluded that the “state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” … . * * *

We agree with the First Department’s conclusion in this regard, for the reasons stated in its opinion. It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed” (CPLR 3126). Fadeau v Corona Indus. Corp., 2023 NY Slip Op 03453, Second Dept 6-28-23

Practice Point: Here in this traffic accident case, plaintiff underwent surgery before the action was commenced and again after the defense demand for a pre-surgery physical exam. Joining the First Department, the Second Department held that surgery is not spoliation of evidence and does not trigger sanctions.

 

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THE BANK’S SECOND MOTION IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR A MOTION TO RENEW AND VIOLATED THE “SUCCESSIVE SUMMARY JUDGMENT MOTION” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the second motion for summary judgment made by the bank in this foreclosure action was not a valid motion to renew and violated the “successive summary judgment rule:”

“While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance. When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” … . … [P]laintiff failed to provide any justification for its failure to present the new evidence supporting the second motion as part of its prior motion.

“Even considered as a successive motion for summary judgment, such a motion ‘should not be entertained in the absence of good cause, such as a showing of newly discovered evidence'” … . Here, the plaintiff failed to present good cause.

The second motion also did not fit within the “narrow exception” to the successive summary judgment rule … . This narrow exception permits entertainment of a successive motion when it is “substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts” … . Here, entertaining a second summary judgment motion involved review of multiple disputed issues, including whether the plaintiff established the defendants’ default, the plaintiff’s compliance with the contractual condition precedent, and the plaintiff’s compliance with RPAPL 1304. Thus, rather than eliminating a burden on the Supreme Court, the court’s consideration of the second motion actually imposed an additional burden on the court. “‘Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance'” … . Wells Fargo Bank, N.A. v Gittens, 2023 NY Slip Op 03373, Second Dept 6-21-23

Practice Point: The failure to explain why available evidence was not submitted in the first summary judgment motion will result in denial of a motion to renew.

Practice Point: The second motion here violated the “successive summary judgment motion” rule. The criteria are explained.

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not present sufficient proof of compliance with the notice requirements of RPAPL 1304:

… [A]lthough the affidavit of the servicing agent stated that the 90-day notice was mailed to the defendant by certified mail and regular first-class mail, the affiant did not attest to having personally mailed the notices, nor that she was familiar with the mailing procedures of the entity that mailed the notices and that such procedures were designed to ensure that the notices were properly addressed and mailed …  The plaintiff also failed to submit documentation from the United States Postal Service proving the first-class mailing of the 90-day notice to the defendant … . U.S. Bank Trust, N.A. v Smith, 2023 NY Slip Op 03372, Second Dept 6-21-23

Practice Point: Once again, failure to demonstrate the RPAPL 1304 notice of foreclosure was properly mailed results in reversal of summary judgment.

 

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IN A PROCEEDING SEEKING FINDINGS TO ENABLE A CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) THE SUBMISSION OF CERTIFIED COPIES OF BIRTH CERTIFICATES OR DEATH CERTIFICATES IS NOT REQUIRED; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Family Court, determined this proceeding seeking findings to enable the child to apply for special immigrant juvenile status (SIJS) should not have been dismissed on the ground that certified copies of birth certificates and/or death certificates were not submitted:

… [P]etitioner … commenced this proceeding pursuant to Family Court Act article 6 to be appointed as the guardian of the child. Thereafter, the petitioner moved for the issuance of an order … making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). … Family Court dismissed the petition and denied the petitioner’s motion. …

… [T]here is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . …[S]ince the court dismissed the petition without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court … . Matter of Anuar S. A. O. (Yari C. B. M. Lizeth O. M.), 2023 NY Slip Op 03353, Second Dept 6-21-23

Practice Point: Certified copies of birth certificates or death certificates need not be submitted in a proceeding for findings enabling a child to apply for special immigrant juvenile status (SIJS). Here the proceeding should not have been dismissed on that ground and the matter was remitted for a determination on the merits.

 

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THE LETTER OF INTENT WAS AN AGREEMENT TO AGREE WHICH CONTEMPLATED ONLY OUT-OF-POCKET DAMAGES FOR A BREACH; THE JUDGE SHOULD NOT HAVE RELIED ON CREDIBILITY DETERMINATIONS TO, SUA SPONTE, AWARD SUMMARY JUDGMENT TO PLAINTIFFS (FIRST DEPT).

​The First Department, reversing Supreme Court, determined that the letter of intent (LOI) was an agreement to agree which, if breached, supported only out-of-pocket damages, not cover damages. The judge improperly relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs:

… [R]ecovery for breach of a preliminary agreement’s confidentiality provision could not be based on “the theory that it would have acquired” the company at issue, as the “defendant[] w[as] not bound to go forward with the transaction” … . * * *

… [T]he text of the LOI and the surrounding circumstances support a finding that the parties did not contemplate cover damages at the time of contracting. That the parties entered only a preliminary agreement with no obligation to close a transaction and no specific damage provision for breach conclusively shows that defendant did not wish to assume the risk of covering whatever replacement transaction plaintiffs might pursue … .

… [T]he court improperly relied on credibility determinations to resolve material issues that should have been resolved by the jury. It is “not the function of a court deciding a summary judgment motion to make credibility determinations” … . Cresco Labs N.Y., LLC v Fiorello Pharms., Inc., 2023 NY Slip Op 03305, First Dept 6-20-23

Practice Point: Here the letter of intent was an agreement to agree which contemplated only out-of-pocket damages for a breach.

Practice Point: The judge should not have relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs.

 

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IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant dog-owner’s motion for summary judgment in this dog-bite case should have been granted. Defendant made a prima facie showing she was not aware of the dog’s vicious propensities. Plaintiff did not raise a question of fact on that issue:

Even when viewing the evidence in the light most favorable to plaintiff, as we must, we find that plaintiff failed to raise an issue so as to defeat the motion. As to the statement that the dogs were play fighting, the child admitted that she was unfamiliar with dogs and that she assumed because they were growling that they were fighting or at least unhappy with “what’s [going on] around them.” However, “[n]o court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities” … . Growling and barking during play activities among dogs is consistent with normal canine behavior … . Even if the growling could be considered some indication of vicious propensities, the child never identified the dog that bit her as being the dog that she heard growling. As to the statement that the dog dislikes males, the child testified that defendant’s son told me “something about [the dogs] not liking guys, but as a joke.” This is not proof of an aggressive behavior and, in any event, does not relate to the child because she is a female … . The mere fact that defendant kenneled the dog, and kept the dog in her bedroom when she was absent from her residence, does not support an inference that defendant was aware the dog might pose a danger, since there was no evidence that this was done due to a concern that the dog would harm someone … ; instead defendant’s son stated that the dogs were kenneled because the puppies might escape. Additionally, it is undisputed that the dog was not confined, gated or tethered while the child was at the residence and in fact the child encouraged the dog to jump up on the bed next to her so she could pet it … . J.S. v Mott, 2023 NY Slip Op 03276, Third Dept 6-15-23

Practice Point: This is a fact-based dog-bite case. Plaintiff’s allegations in opposition to defendant dog-owner’s summary judgment motion did not raise a question of fact about whether defendant was aware of her dog’s vicious propensities.

 

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THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner created the dangerous condition which caused plaintiff’s slip and fall. The area had been mopped with a soap-like substance an hour before the fall and plaintiff testified she noticed the floor was wet and smelled of cleaning fluid after she fell:

… [D]efendant relied upon the deposition testimony of the plaintiff and of the defendant’s maintenance employee who was in charge of mopping the lobby. Their testimony demonstrated that the lobby area where the plaintiff fell had been mopped with a soap-like substance sometime during the hour preceding the plaintiff’s fall and that, after she fell, the plaintiff noticed that the floor was wet and smelled like a cleaning liquid. Given this evidence, the defendant failed to eliminate all triable issues of fact as to whether it created the condition that caused the plaintiff to fall … . Contrary to the defendant’s contention, its submissions failed to establish that the wet or oily condition of the floor was readily observable by a reasonable use of the plaintiff’s senses prior to her fall … . Buestan v Tiff Real Prop., Inc., 2023 NY Slip Op 03220, Second Dept 6-14-23

Practice Point: Evidence that the area of the slip and fall was mopped with soap an hour before plaintiff’s slip and fall and that plaintiff noticed the floor was wet and smelled of soap after her fall raised a question of fact whether the property owner created the dangerous condition which caused the fall.

 

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AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the tires (wheels?) detached causing an accident:

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” … . The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause … . The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect … . Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence … .

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence … . Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence … and that the plaintiffs did not contribute to the event … . …

… [S]ince this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” … , the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability. Bicchetti v Atlantic Toyota, 2023 NY Slip Op 03219, Second Dept 6-14-23

Practice Point: Here a wheel fell off plaintiffs’ car after the car was serviced, causing an accident. Although the car was not in the exclusive control of the dealership when the wheel fell off, the negligence occurred when the dealership had exclusive control. This was deemed a rare case warranting summary judgment.

 

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