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A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing court should not have used a presentence report created for an earlier, unrelated offense. A unique presentence report for each offense is mandatory:

CPL 390.20 provides that “[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation” (CPL 390.20[1]). This statutory language is mandatory … and a sentencing court’s failure to obtain a presentence report renders the sentence imposed invalid as a matter of law … .

Here, the County Court sentenced the defendant on the murder conviction without ordering or receiving a presentence report relating to the murder conviction. Instead, the court relied on a presentence report prepared in connection with the defendant’s conviction of attempted criminal possession of a controlled substance in the third degree, the facts and circumstances of which were not related to the facts and circumstances of the murder conviction. … [T]his did not satisfy the requirements of CPL 390.20, and therefore the sentence was illegally imposed. People v Shearer, 2023 NY Slip Op 00445, Second Dept 2-1-23

Practice Point: A judge cannot use a presentence report prepared for one offense in a sentencing for a different, unrelated offense.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

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

“[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action” … . Although the plaintiff attached to the complaint copies of the note and a chain of purported allonges ending with an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were on pieces of paper completely separate from the note, were “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

Johnson’s [the foreclosure specialist’s] affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed …  Further, Johnson’s affidavit failed to address the nature of Fay’s [plaintiff’s loan servicer’s] relationship with LenderLive [third-party vendor which sent the RPAPL 1304 notice] and whether LenderLive’s records were incorporated into Fay’s own records or routinely relied upon in its business … . Thus, Johnson’s affidavit failed to lay a foundation for admission of the transaction report generated by LenderLive (see CPLR 4518[a] …). Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304 …) . US Bank N.A. v Okoye-Oyibo, 2023 NY Slip Op 00457, Second Dept 2-1-23

Practice Point: Here there was no evidence the allonge was firmly attached to the note; therefore the bank’s standing to bring the foreclosure action was not demonstrated.

Practice Point: The bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304.

 

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school board should not have been granted. Petitioner alleged her child was not properly supervised at recess. The child apparently ran into a piece of equipment when being chased by classmates. There was an accident report and the three recess supervisors indicated they did not see the incident. The Second Department held that the school did not have timely notice of the potential claim and petitioner did not have an adequate excuse for failing to timely file:

… [T]he accident claim form states that three school employees were supervising recess but did not see the infant petitioner become injured. This, standing alone, is insufficient to establish actual knowledge of a potential negligent supervision claim because it is well established that schools “‘cannot reasonably be expected to continuously supervise and control all movements and activities of students'” …  The petitioners also failed to establish that the School Board had actual knowledge of the facts constituting their other two claims … . The petitioners identify no factual connection between the recess supervisors not seeing the infant petitioner’s injury and either the allegedly defective nature of the playground equipment or the instruction given or not given to students at recess. It is not even clear from the description of the incident on the accident claim form whether the school was aware that the infant petitioner injured himself on a “metal joint” as alleged in the petition and the notice of claim. Thus, the petitioners failed to establish that the School Board had actual knowledge of the facts constituting their claims … . Matter of R. M. v Board of Educ. of the Long Beach City Sch. Dist., 2023 NY Slip Op 00320, Second Dept 1-25-23

Practice Point: Here the petition for leave to file a late notice of claim should not have been granted in this school-playground accident case. There was an accident report but the report did not demonstrate the school had timely knowledge of the potential lawsuit. in addition, petitioner did not offer a reasonable excuse for failing to timely file.

 

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff, who was replacing damaged ceiling tiles when he fell, was doing repair work covered by Labor Law 240(1) and 241(6), or routine cleaning, which is not covered:

“In determining whether a particular activity constitutes ‘repairing,’ courts are careful to distinguish between repairs and routine maintenance” … , since “routine maintenance” work performed “in a nonconstruction, nonrenovation context” is not a covered activity … .

… [T]he City failed to establish … that the tasks [plaintiff] was performing at the time of the accident were associated with routine maintenance, which is not a covered activity under the Labor Law, rather than repair work, which may be covered, even if it was not part of a larger renovation project … . Nooney v Queensborough Pub. Lib., 2023 NY Slip Op 00327, Second Dept 1-25-23

Practice Point: Routine maintenance is not covered by Labor Law 240(1) or 241(6) but repair is. Here there was a question of fact whether replacing damaged ceiling tiles was repair or routine maintenance.

 

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TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT),

The Second Department, reversing the city board of assessment review (BAR) determined that townhouses purchased by the Rye County Day School (RCDS), a not-for-profit school, to house faculty were tax exempt:

RPTL 420-a(1)(a) provides that “[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.” The word “exclusively” in the statute has been broadly defined as “principally” or “primarily” … , such that “purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” … . Thus, the two-part test for determining entitlement to a property tax exemption under RPTL 420-a is “(1) whether the owner of the property is organized or conducted exclusively, or primarily, for an exempt purpose; and (2) whether the particular property for which the exemption is sought is itself primarily used for an exempt purpose” … .

RCDS demonstrated that the “primary use” of the faculty-occupied townhouses furthered its “primary purpose” of operating as a school.

… RCDS demonstrated that the “primary use” of the faculty-occupied townhouses furthered its “primary purpose” of operating as a school … . Matter of Rye Country Day Sch. v Whitty, 2023 NY Slip Op 00323, Second Dept 1-25-23

Practice Pont: Faculty housing for a not-for-profit school is tax exempt.

 

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FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

 

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THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation waiving defendant’s payment of rent as long as the closing on defendant’s purchase of the property occurred by a designated date did not inform defendant “time was of the essence” such that plaintiff could keep the down payment:

Sometime after the parties entered into the contract, the defendant commenced a landlord-tenant proceeding against the plaintiff, which the parties settled in a stipulation dated February 16, 2011. Paragraph 2 of the stipulation provided that “[i]n settlement and satisfaction of all claims by [the plaintiff], and in consideration of [the plaintiff] closing title on the purchase of 1474 Ralph Avenue, Brooklyn, New York, no later than March 31, 2011, [the defendant] waives the rent due for July 2010.” The closing never occurred. * * *

Where, as here, “time was not made of the essence in the original contract” … , “one party may make time of the essence by giving proper notice to the other party” … and avail himself [or herself] of forfeiture on default” … . “The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he [or she] will be considered in default” … . “A party need not state specifically that time is of the essence, as long as the notice specifies a time on which to close and warns that failure to close on that date will result in default” … . It does not matter that the date is unilaterally set … , and “[w]hat constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … .

… [T]he stipulation did not inform the plaintiff that if he did not perform, he would be considered in default … . Lashley v BDL Real Estate Dev. Corp., 2023 NY Slip Op 00314, Second Dept 1-25-23

Practice Point: To trigger “time is of the essence” the defendant must be informed that failure to close the real estate purchase by the designated date will place the defendant in default.

 

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PLAINTIFF’S FAILURE TO PROVIDE EVIDENCE OF THE EXACT AMOUNT OF DAMAGES HE SUFFERED FROM DEFENDANT’S BREACH OF CONTRACT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined plaintiff’s failure to submit evidence of the exact amount of damages he suffered due to defendant’s breach of contract. Therefore plaintiff should not have been awarded summary judgment:

“A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” … . “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” … .

Here, the plaintiff failed to submit competent evidence establishing the exact amount of damages that he sustained as a result of defendant’s breaches of the parties’ agreements, and “the record does not permit precise determination of the amount of the money judgment to which the plaintiff is entitled, including a calculation of prejudgment interest” … . Spilman v Matyas, 2023 NY Slip Op 00344, Second Dept 1-25-23

Practice Point: Here, on plaintiff’s summary judgment motion, plaintiff proved defendant’s breach of contract but did not present evidence of the exact amount of damages he suffered. Therefore the motion should not have been granted.

 

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THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the infancy toll (CPLR 208) applies to the one year and 90-day time limit for a suit against a school district (General Municipal Law 50-i(1)(c)). Therefore the application for leave to file a late notice of claim in this action on behalf of an infant student against a school district should have been granted in its entirety:

Supreme Court erred in concluding that any claim by the infant plaintiff based upon incidents that occurred prior to May 31, 2017, would be time-barred. CPLR 208 tolls a statute of limitations for the period of infancy, including the limitation set forth in General Municipal Law § 50-i(1)(c) … . It is undisputed that the infant plaintiff was an infant at the time of the events underlying this action and at the time that the action was commenced. M. S. v Rye Neck Union Free Sch. Dist., 2023 NY Slip Op 00343, Second Dept 1-25-23

Practice Point: The infancy toll of the statute of limitations in CPLR 208 applies to the one-year-ninety-day time limit for a suit against a school district in General Municipal Law 50-i(1)(c).

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ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff apparently tripped over a hose he had placed on a step. Plaintiff alleged he didn’t see the hose because the light fixture was not working. The court noted that there can be more than one proximate cause of an accident (the hose and the lighting):

There can be more than one proximate cause of an accident and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Here, the defendant failed to eliminate triable issues of fact as to whether inadequate lighting in the area of the subject steps contributed to the plaintiff’s accident … .

A defendant moving for summary judgment in a premises liability case may also establish its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the existence of the allegedly hazardous condition for a sufficient length of time to discover and remedy it … . Here, the deposition testimony of the defendant’s witness that he would have known if the light fixture near the steps was not working was conclusory and speculative, and failed to address the adequacy of the lighting, even assuming that the light fixture was working … . Reyes v S. Nicolia & Sons Realty Corp., 2023 NY Slip Op 00340, Second Dept 1-25-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff tripped over a hose he had placed on the steps and he alleged he didn’t see the hose because of inadequate lighting. Defendant’s motion for summary judgment should not have been granted.

 

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