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CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this staircase collapse case was properly granted. Plantiff demonstrated the defendant had constructive notice of the rusted condition of the staircase:

Plaintiff, a handyman employed by defendant’s managing agent, was injured when the landing of a metal staircase in the sub-basement of defendant’s building collapsed under him, causing him to fall about 20 feet to the cement floor below. Plaintiff established prima facie that defendant had constructive notice of the defective condition of the stairs by submitting photographs showing the staircase covered in rust, and evidence that defendant had no program of inspection for the staircase and had never inspected it in the 27 years preceding the accident … . Conklin v 500-512 Seventh Ave., LP, LLC, 2018 NY Slip Op 01437, First Dept 3-6-18

NEGLIGENCE (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/CONSTRUCTIVE NOTICE (NEGLIGENCE, CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/STAIRS (CONSTRUCTIVE NOTICE OF RUSTED CONDITION OF STAIRCASE WHICH COLLAPSED DEMONSTRATED WITH PHOTOGRAPHS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this truck-bicycle accident case should not have been granted. Although plaintiff had the right of way and defendant crossed into plaintiff’s path, there was a question of fact whether plaintiff could have avoided the accident:

Plaintiff, while traveling south on a bicycle, collided with the passenger side of defendants’ northbound truck as it turned left across his path. While the record establishes that plaintiff had the right of way, an issue of fact exists as to whether plaintiff was negligent in that he could have avoided the collision through the exercise of reasonable care but failed to do so. Accordingly, plaintiff was not entitled to summary judgment on the issue of liability. Bermeo v Time Warner Entertainment Co., L.P., 2018 NY Slip Op 01433, First Dept 3-6-18

NEGLIGENCE (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))/BICYCLES (TRAFFIC ACCIDENTS, EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT))

QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT).

The First Department, modifying Supreme Court, determined that the cause of action against the elevator company (Nouveau) alleging negligence should not have been dismissed in this personal injury action. Plaintiff alleged she was struck on her head by a hot object when she was in the elevator. A washer was found in the elevator. Nouveau was working in an adjacent elevator shaft at the time. The court noted it was not necessary for plaintiff to plead the doctrine of res ipsa loquitur in order to assert it, however, the record was not sufficient for the court to consider it:

… [P]laintiff raised triable issues of fact, as circumstantial evidence showed that a prompt investigation of the incident indicated that Nouveau’s workers were installing equipment in an adjacent elevator shaft several floors above where plaintiff’s elevator cab had come to a stop, and that no other construction crews were in the vicinity of the elevator bank in question. Contrary to the motion court’s finding, the evidence could be sufficient to support an inference that it was more likely that the injury was caused by negligence on the part of Nouveau rather than by some other actor … .

Contrary to the motion court’s finding, “neither plaintiff’s failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence . . . constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application”… . However, we are unable to determine on this record whether, as plaintiff contends, the doctrine of res ipsa loquitur is applicable to Nouveau. Ocasio v Dormitory Auth. of the State of N.Y., 2018 NY Slip Op 01424, Frist Dept 3-6-18

NEGLIGENCE (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (NEGLIGENCE, QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/RES IPSA LOQUITUR (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))/ELEVATORS (QUESTION OF FACT RAISED BY CIRCUMSTANTIAL EVIDENCE, PLAINTIFF STRUCK ON HER HEAD BY A FALLING OBJECT IN AN ELEVATOR WHEN DEFENDANT WAS WORKING ON AN ADJACENT SHAFT, NO NEED TO PLEAD RES IPSA LOQUITUR TO ASSERT IT, RECORD INSUFFICIENT TO CONSIDER APPLICABILITY OF RES IPSA LOQUITUR (FIRST DEPT))

PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly denied. Plaintiff fell from a platform. He was wearing a vest and lanyard but did not attach himself to an available lifeline:

Plaintiff Luis Colon was injured when he fell from a makeshift platform while torquing bolts on the Henry Hudson Bridge restoration project. At the time of his fall, plaintiff was wearing a vest and lanyard; however, he did not attach himself to the available lifeline. There are questions of fact on this record concerning whether it was feasible or even practical for Colon to have attached himself to the lifeline or whether another safety device was required and whether it was provided … . Colon v Metropolitan Transp. Auth., 2018 NY Slip Op 01436, First Dept 3-6-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT ATTACH HIMSELF TO AN AVAILABLE LIFELINE, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT).

The First Department determined defendant’s motion for resentencing under the Drug Law Reform Act of 2005 was properly denied because the motion was made within three years of defendant’s parole eligibility date:

Defendant argues that the 2005 Act should be reinterpreted in light of recent developments, including those relating to the resentencing of persons convicted of other types of drug felonies. However, no decision finding eligibility with regard to any other Drug Law Reform Act has vitiated the 2005 Act’s clear eligibility requirement that the applicant’s parole eligibility date be at least three years in the future. To accept defendant’s argument, we would have to rewrite the statute to treat persons convicted of class A-II felonies the same as persons convicted of other drug felonies … . People v Moore, 2018 NY Slip Op 01428, First Dept 3-6-18

CRIMINAL LAW (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/SENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/RESENTENCING (DRUG LAW REFORM ACT, MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))/DRUG LAW REFORM ACT (MOTION FOR RESENTENCING PROPERLY DENIED BECAUSE IT WAS MADE WITHIN THREE YEARS OF DEFENDANT’S PAROLE ELIGIBILITY DATE (FIRST DEPT))

DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT).

The First Department determined denying petitioner parole was “irrational.” The proper remedy is a new parole nearing, not granting parole in a court ruling (as Supreme Court did). Petitioner, now 51, was convicted of felony murder when she was very young. She had driven the car to where her husband was staying. A passenger in the car shot and killed her husband. The jury found petitioner did not intend that her husband be killed. Petitioner has been a model prisoner for decades:

The commissioners failed to appreciate that petitioner’s murder conviction was not for intentional murder, but rather for second-degree felony murder. The felony murder rule, of course, provides that a person is guilty of second-degree murder when, “[a]cting either alone or with one or more other persons, [she] commits or attempts to commit [violent crimes including] burglary, . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, [she], or another participant, . . . causes the death of a person other than one of the participants” … . In essence, and particularly in the context of a burglary conviction, the felony murder rule imposes strict and vicarious liability for a killing that one did not intend, provided that it was the result of an enumerated felony that one did intentionally commit. Intent to kill plays no role in a finding of felony murder … .

At the parole hearing, petitioner nonetheless accepted responsibility for her “choices and decisions that led to a chain of events that led to the death of [her] husband.” Far from showing any lack of insight into her crime, petitioner’s testimony at the parole hearing was truthful, accurate, and consistent with what the jury found happened in 1991.

Accordingly, respondent’s determination denying petitioner parole manifested “irrationality bordering on impropriety,” warranting granting the petition to vacate the denial of parole … . Matter of Kellogg v New York State Bd. of Parole, 2018 NY Slip Op 01425, First Dept 3-6-18

CRIMINAL LAW (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))/PAROLE (DENIAL OF PAROLE MANIFESTED IRRATIONALITY BORDERING ON IMPROPRIETY (FIRST DEPT))

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PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) action should not have been dismissed. Plaintiff worked for a company hired to renovate building space leased by defendant (Cayre). Cayre’s space was on the 41st and 42nd floors. The space where plaintiff was injured was on the 16th floor in an area used by plaintiff’s employer for work related to the renovation of Cayre’s space. Plaintiff’s thumb was injured when he was using an unguarded saw on the 16th floor. The court noted that a lessee is deemed an owner within the meaning of Labor Law 241 (6):

We find that there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area. … . …”[G]enerally, the scope of a work site must be reviewed as a flexible concept, defined not only by the place but by the circumstances of the work to be done. Thus, Labor Law § 241(6) extends to areas where materials or equipment are being readied for use, as opposed to areas where they are merely stored for future use” … . Here, although defendants contend that the 16th floor space is [plaintiff’s employer’s] permanent workshop, in fact, the 16th floor work space where the accident occurred belonged to 1407 Broadway [the net operating lessee], and the 41st floor location of the executive bathroom being renovated was owned by 1407 Broadway, and leased to Cayre. * * *

We … reject Cayre’s argument that … plaintiff’s accident does not come within the ambit of Labor Law § 241(6) because he was engaged in the fabrication and transportation of materials to be used in connection with construction. As stated by the Court of Appeals, Labor Law § 241(6) covers industrial accidents that occur in the context of construction (Nagel v D & R Realty Corp., 99 NY2d 98). Indeed, Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) is instructive. There, the Court noted that “work that is an integral part of the construction contract’ and is necessitated by and incidental to the construction . . . and involve[s] materials being readied for use in connection therewith’ is construction work” … . Karwowski v 1407 Broadway Real Estate, LLC, 2018 NY Slip Op 01422, First Dept 3-2-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))/CONSTRUCTION AREA (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED IN A WORK AREA ON THE 16TH FLOOR USED FOR RENOVATION WORK ON THE 41ST FLOOR, QUESTION OF FACT WHETHER THE 16TH FLOOR WAS A CONSTRUCTION AREA WITHIN THE MEANING OF LABOR LAW 241 (6), THE COURT NOTED A LESSEE IS AN OWNER WITHIN THE MEANING OF LABOR LAW 241 (6) (FIRST DEPT))

THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPT).

The First Department upheld the declaratory judgment finding that defendant insurer does not have a duty to defend based upon the exclusion of coverage for antitrust violations. Despite the allegations in the complaint which colored the action as one for product disparagement, which would be covered, the complaint alleged antitrust violations:

The underlying lawsuit alleges, broadly, that plaintiff acquired and maintained its 90% market share of VHR (vehicle history report) sales by engaging in an anticompetitive scheme. Plaintiff contends that defendant owes it a defense in the suit because the suit alleges disparagement. It relies on the following allegations: “By contractually committing these two websites to include hyperlinks to Carfax VHRs and to exclude VHRs of any other provider, Carfax has stigmatized any listing without such a link in the eyes of consumers who infer that the absence means that the car has a blemished history.” “Carfax also utilizes its inflated revenues to disparage and falsely malign dealers in order to mislead consumers into believing its VHRs are necessary and accurate.”

These passing references to disparagement do not allege a “Wrongful Act” [within the meaning of the policy language].” They were made “only in the context of the anti-trust claims, i.e. , as legal jargon pertinent to anti-trust and not as a means of even arguably alleging a separate claim for libel, slander or product disparagement” … . Carfax, Inc. v Illinois Natl. Ins. Co., 2018 NY Slip Op 01409, First Dept 3-1-18

INSURANCE LAW (THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))/DUTY TO DEFEND (INSURANCE LAW, THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))/ANTITRUST ((INSURANCE LAW, THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPARTMENT))

SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the suit by a general contractor (Aragon) and property lessee seeking indemnification for a settlement paid to defendant subcontractor’s (Port Richmond’s) injured employee (Brown), as well as the suit alleging the failure to procure insurance, should not have been dismissed. The court explained the relevant indemnification law:

It is well settled that “where an indemnitor does not receive notice of an action settled by the indemnitee, in order to recover reimbursement [for the settlement], [the indemnitee] must establish that [it] would have been liable and that there was no good defense to the liability”… . Conversely, “[w]here the indemnitor does receive notice of the claim against the indemnitee, . . . the general rule is that the indemnitor will be bound by any reasonable good faith settlement the indemnitee might thereafter make”… . As to notice, ” [i]t is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of the claim and that the action is pending with full opportunity to defend or to participate in the defense'” … . …

Applying these principles, we find that the motion court improperly dismissed the indemnification claim. The subcontract plainly requires indemnification for claims arising out of Port Richmond’s work on the construction project. On appeal, Port Richmond does not argue that Brown’s injuries did not arise from its work. Instead, Port Richmond contends that because the underlying action was dismissed against Aragon, plaintiffs cannot establish Aragon’s liability for those injuries. However, where notice is given, the indemnitee need not establish its own liability for the underlying claim … . There is no dispute that Port Richmond had notice of the underlying action as well as the settlement negotiations in this Court.  Zurich Am. Ins. Co. v Tower Natl. Ins. Co., 2018 NY Slip Op 01401, Second Dept 3-1-18

INSURANCE LAW (SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))/INDEMNIFICATION (INSURANCE LAW, SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))/SETTLEMENTS (INSURANCE LAW, INDEMNIFICATION, (SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT))

COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted because the papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

…[T]he complaint should be dismissed as against defendant, without prejudice, because plaintiff failed to prove that it mailed the notices required by Real Estate Property Actions and Proceedings Law § 1304 … . The affidavit by Diondra Doublin, submitted by plaintiff, failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures … . The fact that some of the RPAPL 1304 notices bear a certified mail number is also insufficient … . We further note that defendant submitted an affidavit denying that he had received any RPAPL 1304 notice … .

Plaintiff’s motion should be denied for the additional reason that the affidavit by defendant’s wife creates an issue of fact as to whether plaintiff delivered the notice required by RPAPL 1303 with the summons and complaint … . Nationstar Mtge., LLC v Cogen, 2018 NY Slip Op 01413, First Dept 3-1-18

FORECLOSURE (COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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