You are here: / First Department

Tag Archive for: First Department

STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank did not demonstrate it had met the statutory notice requirements of the Real Property Actions and Proceeding Law (RPAPL). Therefore the bank’s motion for summary judgment should have been denied:

​

RPAPL 1304 notice “shall be sent by [the] lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage” (RPAPL 1304[2]). Proper service of a RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of a foreclosure action, and plaintiff has the burden of establishing its strict compliance with this condition … .

​

Plaintiff failed to establish that it strictly complied with RPAPL 1304. Plaintiff submitted an affidavit of its loan servicer, supported by copies of the 90-day notice it alleges was served and a copy of the unsigned, undated return receipt. These documents were insufficient to establish plaintiff’s prima facie entitlement to summary judgment. In the affidavit, the loan servicer’s vice president of loan documentation fails to demonstrate a familiarity with the servicer’s mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure … . Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not sufficient to establish proof of the actual mailing … . HSBC Bank USA v Rice, 2017 NY Slip Op 07936, First Dept 11-14-17

 

FORECLOSURE (STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/NOTICE (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

, , ,

WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

​

The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

​

The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

 

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT).

The First Department determined the law of the case doctrine prohibited the trial court, a court of coordinate jurisdiction, from deviating from a prior ruling in the commercial division. The commercial division had ruled the plaintiff restaurant’s exhaust system violated the NYC Mechanical Code:

​

The “law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case” … . Here, the trial court was prohibited from finding that plaintiff’s commercial kitchen exhaust system did not violate the Mechanical Code. The trial court adopted the earlier finding … when it held that [the] orders were the “law of the case,” and limited the issue at trial … . Glaze Teriyaki, LLC v MacArthur Props. I, LLC, 2017 NY Slip Op 07770, First Dept 11-9-17

 

CIVIL PROCEDURE (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))/LAW OF THE CASE  (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))

,

PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, determined plaintiffs were entitled to summary judgment on their defective design cause of action in this products liability case. The product is a “fire pot” which burns a gel poured into a cup. Apparently the gel exploded. There was expert testimony that it is difficult to see whether the gel is burning and reloading the gel while it is burning will cause it to explode:

​

… [P]laintiffs have established, as a matter of law, that the product at issue, consisting of the fire pot and the fuel gel, was defectively designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs’ injuries. Plaintiffs have submitted evidence, including expert affidavits, demonstrating that the product has minimal utility, serving a purely decorative purpose, that it poses an extraordinary safety risk in that it can explode and propel flaming fuel gel onto persons in its vicinity and cause them to catch fire when a person attempts to light the fire pot with the fuel gel while the fire pot is already lit or hot, that when the fuel gel in the fire pot is lit but burns down, it has a nearly invisible flame, which can mislead users into perceiving the flame as extinguished and the fuel gel exhausted, that the viscosity of the fuel gel makes it easily adherent to skin and clothing which makes it very difficult to extinguish and that alternative and safer designs are available in that instead of designing the fire pot with a deep-seated stainless steel cup into which the fuel gel is poured, the product could have been designed using fuel gel in nonrefillable metal cans or cartridges that get inserted directly into the fire pot, which would eliminate the design defect that causes an explosion upon refueling the fire pot with the fuel gel as well as the related dangers flowing from the fuel gel flame being difficult to visually discern when the fuel gel burns down and the viscosity of the fuel gel. Finally, the experts opined that the defective design of the product was a substantial factor in causing plaintiffs’ injuries.

In opposition, defendant has failed to raise an issue of fact as to whether the product was designed in a reasonably safe manner or whether the defective design was a substantial factor in causing plaintiffs’ injuries.  M.H. v Bed Bath & Beyond Inc., 2017 NY Slip Op 07790, First Dept 11-9-17

​

 

 

PRODUCTS LIABILITY (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/NEGLIGENCE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))/DESIGN, DEFECTIVE (PRODUCTS LIABILITY, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT ON THEIR DEFECTIVE DESIGN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE (FIRST DEPT))

,

POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT).

The First Department determined the city’s motion for summary judgment was properly dismissed in this traffic accident case involving a police car. The court held that the officer was engaged in an emergency operation when he went through a red light at an intersection and struck plaintiff’s car. Even if the siren and emergency lights were not on, the officer was authorized to proceed through the intersection:

​

Defendants’ motion for summary judgment was properly granted since the record shows that defendant Kohler, a police officer, was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened … . The fact that Koehler was mistaken in believing that plaintiff was stopping her vehicle when he proceeded to pass through the red light did not render his conduct reckless. Koehler testified that as he approached the intersection, he reduced his speed and looked left and right. He was traveling approximately 10 miles above the speed limit when the accident occurred. Koehler attempted to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff’s vehicle had entered the intersection … . The fact that there is a question as to whether the police vehicle’s lights and siren were activated is not material because Koehler was not required to activate either of these devices in order to be entitled to the statutory privilege of passing through a red light … . Lewis v City of New York, 2017 NY Slip Op 07785, First Dept 11-9-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (EMERGENCY OPERATION, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/TRAFFIC ACCIDENTS (EMERGENCY OPERATION, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/POLICE OFFICERS (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/EMERGENCY OPERATION (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/RECKLESS DISREGARD (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/SIREN (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))/EMERGENCY LIGHTS (TRAFFIC ACCIDENTS, POLICE OFFICER DID NOT ACT IN RECKLESS DISREGARD FOR SAFETY IN THIS INTERSECTION ACCIDENT CASE, OFFICER WAS AUTHORIZED TO DRIVE THROUGH A RED LIGHT EVEN IF THE SIREN AND EMERGENCY LIGHTS WERE NOT ACTIVATED (FIRST DEPT))

,

CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a contract was not actionable because the consideration for a past or executed promise was not spelled out in it. The court noted that a decision on a motion to dismiss does not become the law of the case in a subsequent motion for summary judgment:

​

General Obligations Law (GOL) § 5-1105 provides:

“A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed.”

It essentially codifies the notion that “[g]enerally, past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.’ That is, since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise'”… . However, General Obligations Law § 5-1105 makes an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be “vague” or “imprecise,” nor may extrinsic evidence be employed to assist in understanding the consideration … . * * *

… “[T]he law of the case doctrine does not apply when a motion to dismiss is followed by a summary judgment motion” … . Korff v Corbett, 2017 NY Slip Op 07677, First Dept 11-2-17

 

CONTRACT LAW (CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CIVIL PROCEDURE (DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/GENERAL OBLIGATIONS LAW 5-1105  (CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))/CONSIDERATION (CONTRACT LAW, CONTRACT NOT ACTIONABLE BECAUSE IT DID NOT SPELL OUT THE CONSIDERATION FOR A PAST OR EXECUTED PROMISE, DECISION ON A MOTION TO DISMISS DOES NOT BECOME THE LAW OF THE CASE IN A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FIRST DEPT))

HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT).

The First Department determined the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) controlled an action in New York making a claim to a painting that was confiscated during the German occupation of France in 1944. Under HEAR the action was timely commenced:

​

HEAR supplants the statute of limitations provisions otherwise applicable to civil claims such as these (see Pub L 114-308, § 5[a]). Under HEAR, the applicable statute of limitations is six years from the date of “actual discovery” of “the identity and location of the artwork” and “a possessory interest of the claimant in the artwork” (id.). We reject defendants’ argument that HEAR can be displaced by a choice-of-law analysis.

 

Under section 5(c) of HEAR, for purposes of starting the running of the six-year statute of limitations provided by section 5(a), a preexisting claim covered by HEAR is “deemed to have been actually discovered on the date of enactment of [HEAR].” However, section 5(c) is made subject to the exception provided in section 5(e), which, as here relevant, provides that HEAR does not save a preexisting claim that was “barred on the day before the date of enactment of [HEAR] by a Federal or State statute of limitations” where “not less than 6 years have passed from the date [the] claimant . . . acquired such knowledge and during which time the civil claim or cause of action was not barred by a Federal or State statute of limitations.” Accordingly, to establish that HEAR does not save the subject claim, defendants were required to show that [plaintiff] discovered the claim on or before December 15, 2010 (six years before the day before the date of HEAR’s enactment). This they have failed to do. Maestracci v Helly Nahmad Gallery, Inc., 2017 NY Slip Op 07676, First Dept 11-2-17

CIVIL PROCEDURE (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/HOLOCAUST EXPROPRIATED ART RECOVERY ACT (STATUTE OF LIMITATIONS, HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/STATUTE OF LIMITATIONS  (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/PAINTINGS (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))

HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT).

The First Department determined the Holocaust Expropriated Art Recovery Act of 2016 (HEAR) controlled an action in New York making a claim to a painting that was confiscated during the German occupation of France in 1944. Under HEAR the action was timely commenced:

​

HEAR supplants the statute of limitations provisions otherwise applicable to civil claims such as these (see Pub L 114-308, § 5[a]). Under HEAR, the applicable statute of limitations is six years from the date of “actual discovery” of “the identity and location of the artwork” and “a possessory interest of the claimant in the artwork” (id.). We reject defendants’ argument that HEAR can be displaced by a choice-of-law analysis.

Under section 5(c) of HEAR, for purposes of starting the running of the six-year statute of limitations provided by section 5(a), a preexisting claim covered by HEAR is “deemed to have been actually discovered on the date of enactment of [HEAR].” However, section 5(c) is made subject to the exception provided in section 5(e), which, as here relevant, provides that HEAR does not save a preexisting claim that was “barred on the day before the date of enactment of [HEAR] by a Federal or State statute of limitations” where “not less than 6 years have passed from the date [the] claimant . . . acquired such knowledge and during which time the civil claim or cause of action was not barred by a Federal or State statute of limitations.” Accordingly, to establish that HEAR does not save the subject claim, defendants were required to show that [plaintiff] discovered the claim on or before December 15, 2010 (six years before the day before the date of HEAR’s enactment). This they have failed to do. Maestracci v Helly Nahmad Gallery, Inc., 2017 NY Slip Op 07676, First Dept 11-2-17

 

CIVIL PROCEDURE (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/HOLOCAUST EXPROPRIATED ART RECOVERY ACT (STATUTE OF LIMITATIONS, HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/STATUTE OF LIMITATIONS  (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))/PAINTINGS (HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT))

,

AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Andrias, over a dissent, determined plaintiff bank (BOA) was entitled to summary judgment in this foreclosure action. At issue was whether an affidavit (by Mattera) in support of a prior summary judgment proceeding satisfied the the operative Administrative Order and the business records exception to the hearsay rule:

​

Administrative Order 431/11 … requires the plaintiff’s counsel in a residential mortgage foreclosure action to file an affirmation confirming that he or she communicated with a representative of the plaintiff who confirmed the factual accuracy of the plaintiff’s pleadings, supporting documentation and submissions to the court … . …

To fulfill his obligations under Administrative Order 431/11, plaintiff’s counsel submitted an affidavit that comported with the form provided in Administrative Order 431/11. Counsel stated that … he had communicated with Mattera … . …

The dissent finds this affidavit deficient, stating that “because Mattera’s affidavits do not establish a complete review of, or the indicia of reliability necessary to lay a business records foundation for, the records pre-dating … acquisition of defendant’s mortgage, counsel may not rely upon alleged communications with Mattera to comply with the requirements of the Administrative Order.” However, defendant, who has continued to reside on the premises for the last 10 years without paying her mortgage, did not dispute her default or challenge the accuracy or sufficiency of Mattera’s affidavit on the third summary judgment motion.

Furthermore, CLPR 4518(a) does not require a person to have personal knowledge of each of the facts asserted in the affidavit of merit put before the court as evidence of a defendant’s default in payment … . Thus, in seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor, when it relies upon those records in the regular course of its business… ..

Here, Mattera … satisfied these standards … . Bank of Am., N.A. v Brannon, 2017 NY Slip Op 07578, First Dept 10-31-17

FORECLOSURE (AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/EVIDENCE (FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/HEARSAY (BUSINESS RECORDS EXCEPTION, FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/BUSINESS RECORDS (EXCEPTION TO HEARSAY RULE, FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))

ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT).

The First Department determined Family Court properly vacated an adoption because one of the parties (Ming) who had parental rights was not notified of the adoption proceedings and the court was not fully or accurately informed of Ming’s involvement with the child. Ming was legally married to Marco under British law. Both Ming and Marco had contributed sperm and a surrogate carried the baby. The child was conceived with Marco’s sperm and Marco was ultimately awarded custody. After Ming moved back to England, Carlos, Marco’s new partner, adopted the child. It was that adoption which was properly vacated:

​

It is undisputed that Ming and Marco’s marriage in the UK was effective as of August 2008. New York courts as a matter of comity will recognize such out-of-state marriages … . The child was born in 2014, as the result of jointly executed surrogacy agreements, at a time when the couple was considered legally married, thus giving rise to the presumption that the child is the legitimate child of both Marco and Ming .,, . After the child was born, Marco, Ming and the child lived together as a family, and the couple took affirmative steps in the UK to establish Ming’s parental rights in accordance with UK law. Under these circumstances, the Missouri judgment in 2014 awarding Marco sole and exclusive custody of the child, as opposed to the egg donor and surrogate, was insufficient to rebut the presumption of legitimacy.

​

… Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together .., . Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding … . …

… The adoption petition required petitioner to give a sworn statement that the child to be adopted was not the subject of any proceeding affecting his or her custody or status. Even though petitioner was aware of the Florida divorce action before finalization of the adoption, he failed to disclose the action to the court, instead averring in a supplemental affidavit that there had been no change in circumstances “whatsoever” since the filing of the adoption petition. Matter of Maria-Irene D., 2017 NY Slip Op 06716, First Dept 9-28-17

 

FAMILY LAW (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))/ADOPTION (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))/MARRIAGE  (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy