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IN A FORECLOSURE ACTION THE BANK MUST PROVE COMPLIANCE WITH RPAPL 1306 WHICH REQUIRES PROOF PAPERS WERE FILED WITHIN THREE BUSINESS DAYS OF MAILING THE RPAPL 1304 NOTICE OF DEFAULT; HERE THERE WAS NO PROOF WHEN THE RPAPL 1304 NOTICE WAS MAILED, SO THE PROOF OF COMPLIANCE WITH RPAPL 1306 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment dismissing an affirmative defense (alleging failure to comply with RPAPL 1306) should not have been granted to the plaintiff in this foreclosure action. Because there was no proof of when the notice of default required by RPAPL 1304 was mailed, proof that plaintiff had filed papers with the superintendent of financial services pursuant to RPAPL 1306 was insufficient. RPAPL 1306 requires filing within three business days of mailing the RPAPL 1304 notice. But the date of mailing was not proven:

… [I]n the absence of evidence establishing when the plaintiff mailed the notices required by RPAPL 1304, the plaintiff could not establish, as a matter of law, that it complied with the requirement of RPAPL 1306 to file with the superintendent of financial services within three business days of the mailing of the notice required by RPAPL 1304. Thus, the court should have denied that branch of the plaintiff’s motion which was, in effect, for summary judgment dismissing so much of the defendant’s fifth affirmative defense as alleged a failure to comply with RPAPL 1306…. . PROF-2013-S3 Legal Title Trust V v Johnson, 2023 NY Slip Op 01204, Second Dept 3-8-23

Practice Point: In a foreclosure action, if there is no proof when the RPAPL 1304 notice of default was mailed, the bank can’t prove the papers filed pursuant to RPAPL 1306 were filed within three business days of mailing the RPAPL 1304 notice (which is a requirement of strict compliance with RPAPL 1306).

 

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FATHER’S PETITION TO SUSPEND CHILD SUPPORT WAS PROPERLY DISMISSED BUT THE DISMISSAL SHOULD NOT HAVE BEEN “WITH PREJUDICE” BECAUSE FAMILY COURT HAS CONTINUING JURISDICTION OVER SUPPORT MATTERS (SECOND DEPT).

The Second Department, modifying Family Court, determined that although father’s petition to suspend child support was properly dismissed, it should not have been dismissed “with prejudice:”

Family Court properly dismissed that branch of the father’s petition which was to suspend his basic child support obligation on the ground of parental alienation without a hearing … .

However, the Family Court should not have provided that the dismissal was “with prejudice.” The court has continuing jurisdiction to modify, set aside, or vacate a prior order of child support pursuant to Family Court Act § 451 … . Matter of Lew v Lew, 2023 NY Slip Op 01192, Second Dept 3-8-23

Practice Point: Family Court has continuing jurisdiction over support matters. Therefore father’s petition to suspend child support, although properly dismissed, should not have been dismissed “with prejudice.”

 

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THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was evidence of two proximate causes of the slip and fall: (1) plaintiff/s knee buckled when she stepped out of the shower; and (2) when plaintiff tried to stop her fall by grabbing onto the vanity, the vanity moved five inches and she fell. The building superintendent testified that a properly installed vanity would not move away from the wall:

“There can be more than one proximate cause of an accident, and a defendant moving for summary judgment must show that it is free from fault” … . “‘Generally, it is for the trier of fact to determine the issue of proximate cause'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff losing her balance due to her knee buckling was the sole proximate cause of the accident and that the defendant was free from fault in the happening of the accident … . In support of its motion, the defendant submitted, inter alia, the transcript of the plaintiff’s deposition testimony, at which she testified that, after she lost her balance due to her knee buckling and she grabbed the vanity with one hand, the vanity moved about five inches away from the wall, “and when it moved I lost my balance even more and that’s when I fell.” Moreover, the plaintiff testified that the vanity had been installed around “a couple of weeks” prior to the accident. The defendant also submitted the transcript of the deposition testimony of the superintendent for the apartment building, who testified that a vanity which had been properly installed should not move away from the bathroom wall through “normal use.” Moe-Salley v Highbridge House Ogden, LLC, 2023 NY Slip Op 01187, Second Dept 3-8-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff’s knee buckled as she stepped out of the shower. When she tried to stop her fall by grabbing the vanity, the vanity moved and she fell. There was testimony that a properly installed vanity would not move away from the wall.

 

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DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this icy-steps slip and fall case did not demonstrate they had transferred possession and control of the property such that they were not responsible for removal of ice and snow. The lease was not submitted in support of defendants’ motion for summary judgment:

… [T]he defendants’ submissions failed to establish, prima facie, that they were out-of-possession landlords. The defendants did not submit a copy of any lease, and the deposition testimony submitted in support of the motion failed to establish, prima facie, that the defendants had transferred possession and control of the premises … . Moreover, the deposition testimony submitted in support of the motion included testimony that the defendants were responsible for maintaining the property, including snow removal, and had engaged in snow removal on the premises. The defendants thus also failed to establish, prima facie, that they had no duty, by contract or course of conduct, to remove snow and ice from the premises … . Maharaj v Kreidenweis, 2023 NY Slip Op 01185, Second Dept 3-8-23

Practice Point: Here the defendant landlords did not submit the lease in support of their motion for summary judgment in this icy-step slip and fall case. Therefore the defendants did not demonstrate they were out-of-possession landlords not responsible for ice and snow removal.

 

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THE INJURED PARTY WAS STRUCK WITH A BATON IN AN ALTERCATION OUTSIDE A BAR; IT WAS ALLEGED THE INJURY WAS ACCIDENTAL; THE INSURER SOUGHT A DECLARATORY JUDGMENT RE: THE OBLIGATION TO DEFEND AND INDEMNIFY; THERE WERE QUESTIONS OF FACT WHETHER THE INCIDENT FELL OUTSIDE THE COVERAGE OF THE POLICY (NO DISCLAIMER REQUIRED) OR WHETHER THE INCIDENT WAS SUBJECT TO A POLICY EXCLUSION (TIMELY DISCLAIMER REQUIRED) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the disclaimer by the insurer, Mapfre, was required and/or timely in this personal injury case. In the midst of some sort of altercation outside a bar, Groskopf was struck with a baton by Edward Ferrall. Edward Ferrall claimed he did not intend to strike Groskopf. The two questions before the court in this declaratory judgment action were (1) whether the injury was the result of an “occurrence” (accident) within the coverage terms of the policy, and (2) whether the injury was intended and therefore subject to a policy exclusion. If the claim falls outside the coverage terms no disclaimer is required. If the claim is subject to an exclusion from coverage, a timely disclaimer is required:

… Groskopf and the Ferrall defendants failed to establish, prima facie, their respective entitlement to judgment as a matter of law on whether an “occurrence” was involved giving rise to policy coverage and, if so, whether such occurrence fell within the “expected or intended” injury policy exclusion. * * *

… [D]efendants also failed to demonstrate their respective prima facie entitlement to judgment as a matter of law based upon Mapfre’s alleged untimely disclaimer. * * * [G]iven that there are triable issues of fact regarding whether the claim falls within the coverage, [the] defendants failed to establish, prima facie, that a timely disclaimer was required. Mapfre Ins. Co. of N.Y. v Ferrall, 2023 NY Slip Op 01082, Second Dept 3-1-23

Practice Point: Here there was an altercation outside a bar and the injured party was struck with a baton. It was alleged the injury was accidental and the insurer sought a declaratory judgment on its obligation to defend and indemnify. There were questions of fact whether the incident fell within the coverage terms (if so, no disclaimer was required) and whether the incident was subject to an exclusion from coverage (if so, a timely disclaimer was required).

 

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DEFENDANT’S CAR WAS STRUCK BY AN ONCOMING CAR WHICH CROSSED A DOUBLE YELLOW LINE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined defendant’s motion for summary judgment, based on the emergency doctrine, should have have been granted. A car traveling in the opposite direction crossed a double yellow line into the path of defendant’s car:

Pursuant to the emergency doctrine, “those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” … . “Under appropriate circumstances, the existence of an emergency, as well as the reasonableness of the actor’s response to it, may be determined as a matter of law” … . “A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic, and such an event constitutes a classic emergency situation, thus implicating the emergency doctrine” … . Lizares v Conklin, 2023 NY Slip Op 01081, Second Dept 3-1-23

Practice Point: A driver is not obligated to anticipate that an oncoming car will cross a double yellow line into the driver’s lane. In such a situation, the emergency doctrine applies to insulate the driver from liability.

 

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THE ALLEGATION THE CAR IN FRONT MADE A SUDDEN STOP DOES NOT RAISE A QUESTION OF FACT IN A REAR-END COLLISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the allegation plaintiff made a sudden stop in this rear-end collision case did not raise a question of fact about whether there was a non-negligent cause for the traffic accident:

… [T]he plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ assertion that it was a sudden stop of the plaintiff’s vehicle that caused the accident was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the rear-end collision … . Genao v Cassetta, 2023 NY Slip Op 01078, Second Dept 3-1-23

Practice Point: In a rear-end collision case, the allegation the car in front made a sudden stop does not raised a question of fact about whether there is a non-negligent explanation for the accident.

 

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DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint against the NYC Housing Authority (NYCHA) in this slip and fall case should not have been dismissed based on plaintiff’s failure to attend the General Municipal Law 50-h hearing. The NYCHA unilaterally adjourned the hearing by follow-up letter. Plaintiff denied receipt of the follow-up letter and the NYCHA included an affidavit of service in its reply. The Second Department noted that the affidavit of service should not be considered because it was first submitted in reply. In addition, the affidavit did not present sufficient proof of mailing:

… [E]ven had the affidavit of service of the follow-up letter been submitted with the defendants’ moving papers, the mere assertion therein that the letter was mailed, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice to ensure that it was properly mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly mailed … . Inasmuch as there was no adequate proof that NYCHA served the follow-up letter adjourning the 50-h hearing, NYCHA failed to establish entitlement to such a hearing and that the plaintiff was precluded from commencing this action against NYCHA … . Acevedo v Hope Gardens I, LLC, 2023 NY Slip Op 01073, Second Dept 3-1-23

Practice Point: Yet again an affidavit did not prove a document was mailed because the affiant did not have personal knowledge of the mailing and there was no evidence of a standard office practice to ensure proper mailing.

 

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20 POINTS SHOULD NOT HAVE BEEN ASSESSED UNDER RISK FACTOR 7 (RELATIONSHIP WITH THE VICTIM) BECAUSE THE VICTIM WAS NOT A STRANGER; ALTHOUGH SUBTRACTING 20 POINTS WOULD RESULT IN A LEVEL TWO SEX OFFENDER CLASSIFICATION, THE MATTER WAS SENT BACK BECAUSE THE PEOPLE INDICATED IF DEFENDANT WAS NOT DESIGNATED A LEVEL THREE OFFENDER THEY WOULD SEEK AN UPWARD DEPARTURE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined 20 points should not have been assessed under risk factor 7 (relationship with the victim) because the victim and defendant were not strangers. The People conceded there was a familial relationship:

Supreme Court improperly assessed 20 points under risk factor 7 (relationship with victim), since the People failed to establish by clear and convincing evidence that the defendant and the victim were strangers to each other … . To the contrary, the People conceded that the defendant and the victim had a familial relation, which is “specifically excluded by the Commentary and by the plain language of the Guidelines” with respect to risk factor 7 … .

Thus, 20 points must be deducted from the total risk assessment of 120 points, which places the defendant’s point score within the range of a level two sexually violent offender. Nevertheless, since the record of the SORA hearing reflects that the People would have sought an upward departure had the Supreme Court not designated the defendant a level three sexually violent offender, we remit the matter … to determine whether an upward departure is warranted and for a new determination of the defendant’s risk level … .  People v Perez, 2023 NY Slip Op 01108, Second Dept 3-1-23

Practice Point: Defendant should not have been assessed 20 points under risk factor 7 because the victim was not a stranger. Subtracting 20 points designated defendant a level two sex offender. Because the People indicated they would seek an upward departure if defendant was not designated a level three offender, the matter was remitted.

 

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EVIDENCE DEFENDANT COMMITTED A BANK ROBBERY ONE MONTH AFTER THE CHARGED MURDER WAS NOT ADMISSIBLE UNDER MOLINEUX TO FILL IN A GAP IN THE EVIDENCE OR EXPLAIN A RELATIONSHIP WITH A WITNESS OR TO SHOW A CONSCIOUSNESS OF GUILT; A WITNESS SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY DEFENDANT THREATENED TO KILL ANOTHER WITNESS UNDER THE “OPENING THE DOOR” THEORY BECAUSE THERE WAS NO MISLEADING TESTIMONY WHICH NEEDED TO BE CORRECTED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the evidence defendant committed a bank robbery one month after the murder should not have been admitted. The Second Department also found that the evidence defendant had threatened to kill another witness should not have been admitted under the “opening the door” theory:

… [T]he evidence of the bank robbery did not fill a gap in the story or illuminate the defendant’s motive, nor was it necessary to explain the nature of the relationship between the defendant and the witness since the nature of the relationship had already been explained by the witness in detail … .

… Supreme Court should not have admitted the testimony regarding the bank robbery as evidence of the defendant’s consciousness of guilt. “Evidence of flight is admissible as circumstantial evidence of consciousness of guilt” … . However, here, the testimony, which contained allegations that the defendant robbed a bank in order to fund his evasion of authorities, was unnecessary given that the People had already established that the defendant fled to Florida and Texas after the murder … .

… Supreme Court also erred in its determination that the defendant “opened the door” on cross-examination to allow the People to elicit testimony that the defendant previously threatened to kill another witness. “The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court” … . “The ‘opening the door’ theory must necessarily be approached on a case-by-case basis” … . “[A] trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … . Here, on cross-examination, defense counsel mostly questioned the witness about the previous lies that the witness told authorities related to certain observations that he made on the night of the murder, which the People had already elicited on direct examination. This did not create a “misleading impression” that required corrective testimony … . People v Smith, 2023 NY Slip Op 01106, Second Dept 3-1-23

Practice Point: This decision demonstrates the limits that should be placed on allowing Molineux (other-crime) evidence to come in. Evidence defendant committed a bank robbery after the charged murder was not necessary to fill in a gap in the proof, explain a relationship with a witness or to demonstrate a consciousness of guilt. Testimony the defendant threatened to kill another witness was not admissible under the “opening the door” theory because there was no misleading testimony to be corrected.

 

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