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THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the calculations in the referee’s report were not supported by the relevant business records and the report, therefore, should not have been confirmed:

… [T]he affidavit of Tiffany Bluford, an employee of the plaintiff’s servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [she] purportedly relied upon in making [her] calculations” … . Moreover, the affidavit of Andrea Kruse, another employee of the plaintiff’s servicing agent, did not contain any averment as to the amount due and owing under the subject mortgage loan. Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . HSBC Bank USA, N.A. v Delgado, 2022 NY Slip Op 07223, Second Dept 12-21-22

Similar issue and result in Wilmington Sav. Fund Socy., FSB v Helal, 2022 NY Slip Op 07259, Second Dept 12-21-22

Practice Point: In a foreclosure action, if the calculations in the referee’s report are not supported by the submission of the relevant business records, the report is based on hearsay and should not be confirmed.

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

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

… [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied upon the affidavit of Summer Young, a vice president of the plaintiff’s purported loan servicer. The affidavit was based upon Young’s review of her employer’s records, which were attached thereto. Young did not aver that she had personal knowledge of the mailing, and her affidavit did not contain proof of the standard office mailing procedure at the time the RPAPL 1304 notice allegedly was sent … . Nor did the annexed records demonstrate, prima facie, that the requisite RPAPL 1304 mailings were completed … . Because the plaintiff “failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304,” and therefore failed to establish, prima facie, its entitlement to judgment as a matter of law …  The plaintiff also failed to establish, prima facie, that it complied with the notice of default requirement of the mortgage agreement … . HSBC Bank USA, N.A. v Michalczyk, 2022 NY Slip Op 07222, Second Dept 12-21-22

Practice Point: the bank in this foreclosure action did not present sufficient evidence of compliance with the notice and mailing requirements of RPAPL 1304.

 

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PLAINTIFF IN THIS NON-JURY TRIAL DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1303; JUDGMENT OF FORECLOSURE AND SALE REVERSED (SECOND DEPT). ​

The Second Department, reversing the judgment (after a non-jury trial) of foreclosure and sale, determined plaintiff did not demonstrate compliance with RPAPL 1303:

RPAPL 1303 requires that a notice titled “Help for Homeowners in Foreclosure” be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to four-family dwellings … . “The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type” … . “Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint” … . The foreclosing party bears the burden of establishing compliance with RPAPL 1303 … .

Here, it is undisputed that the plaintiff did not offer any evidence at trial establishing that it complied with the specific requirements of RPAPL 1303, or that it delivered such notice to Nodumehlezi [defendant] at all. Contrary to the plaintiff’s contention, the Supreme Court’s reliance, in a posttrial decision, on documents that had been previously e-filed to establish the plaintiff’s compliance with RPAPL 1303 was improper, since Nodumehlezi had no opportunity to rebut the previously filed affidavit of service and the related documents … . 21st Mtge. Corp. v Nodumehlezi, 2022 NY Slip Op 07212, Second Dept 12-21-22

Practice Point: Here there was a non-jury trial and plaintiff did not prove compliance with RPAPL 1303. The judgment of foreclosure and sale was reversed.

 

DECEDENT’S WIFE’S CLAIM FOR DEATH BENEFITS BASED UPON DECEDENT’S WORK AT THE WORLD TRADE CENTER AFTER 9-11 IS SUBJECT TO THE TWO-YEAR DEADLINE FOR NOTICE IN WORKERS’ COMPENSATION LAW 28; BECAUSE THE NOTICE REQUIREMENT WAS NOT COMPLIED WITH, THE DEATH BENEFITS CLAIM WAS PROPERLY DENIED; THERE WAS A DISSENT (THIRD DEPT). ​

The Third Department, over a dissent, determined the claim by decedent’s wife for death benefits pursuant to Workers’ Compensation Law Article 8-a (re: disability due to work at the World Trade Center after 9-11) was properly denied because the two-year notice requirement in Worker’s Compensation Law 28 applies and was not complied with:

… [G]iven that decedent, not claimant, was a participant within the meaning of Workers’ Compensation Law § 161, it was decedent who was entitled to file a claim for benefits outside of the period allowed by Workers’ Compensation Law § 28. Claimant cannot piggyback upon that entitlement, as her claim for death benefits “accrue[d] at the time of [decedent’s] death and ‘is a separate and distinct legal proceeding’ from [decedent’s] original disability claim” … .The language of the … statutory provisions … clearly reflects that claimant cannot avail herself of the exception to the two-year filing requirement created by Workers’ Compensation Law § 168. Matter of Garcia v WTC Volunteer, 2022 NY Slip Op 07110 Third Dept 12-15-22

Practice Point: Here decedent’s wife sough death benefits stemming from decedent’s work at the World Trade Center after 9-11. The claim was deemed subject to the two-year notice deadline in Workers’ Compensation Law 28 and properly denied.

 

HERE THE CLAIMANT WAS DEEMED DISABLED BY AN OCCUPATIONAL DISEASE (CANCER) CAUSED BY EXPOSURE TO ASBESTOS; THE EMPLOYER RESPONSIBLE FOR COMPENSATION IS THE LAST EMPLOYER WHERE THE NATURE OF THE WORK EXPOSED CLAIMANT TO ASBESTOS, NOT NECESSARILY THE EMPLOYER AT THE TIME THE CANCER WAS DIAGNOSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not use the correct criteria for determining the employer or insurer responsible to pay for claimant’s disability due to occupational disease, i.e., lung cancer caused by asbestos exposure:

… [I]n determining that the carrier was on the risk for the claim, the Board premised its finding solely on the date of disablement, or October 15, 2019, instead of evidence concerning the timing of claimant’s contraction of lung cancer and the “employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted” (Workers’ Compensation Law § 44). This reasoning resulted in a misapplication of Workers’ Compensation Law § 44. “Simply put, disability while employed by a previous employer is not a prerequisite to a finding that a claimant contracted an occupational disease while employed by that employer” … . As such, we reverse and remit for a determination in the first instance of the proper employer and/or carrier on the risk utilizing the correct standard set forth in Workers’ Compensation Law § 44 … . Matter of Candela v Skanska USA Bldg. Inc., 2022 NY Slip Op 07113, Third Dept 12-15-22

Practice Point: Here the occupational disease which disabled claimant was cancer caused by exposure to asbestos. The employer responsible for compensation is the last employer where the nature of the work exposed claimant to asbestos, not necessarily the employer at the time the cancer was diagnosed.

 

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

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ALTHOUGH THE RAISED PORTION OF THE SIDEWALK FLAG OVER WHICH PLAINTIFF TRIPPED DID NOT ABUT DEFENDANTS’ PROPERTY SEVERAL FEET OF THE FLAG EXTENDED IN FRONT OF DEFENDANTS’ PROPERTY; THE VILLAGE CODE MANDATES THAT ABUTTING PROPERTY OWNER’S MAINTAIN SIDEWALKS IN A SAFE CONDITION; DEFENDANTS DID NOT SUBMIT ANY EVIDENCE THAT THEY MAINTAINED THE ABUTTING PORTION OF THE SIDEWALK IN A SAFE CONDITION OR THAT ANY FAILURE TO DO SO WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant homeowners were not entitled to summary judgment in this sidewalk slip and fall case. Apparently the raised part of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property, but much of that same flag abutted defendants’ property. Because the village code placed responsibility on the homeowners to keep the sidewalk in a safe condition, in order to warrant summary judgment, the defendants were required to demonstrate they maintained the portion of the sidewalk in front of their property in a reasonable safe condition or that the failure to do so was not a proximate cause of plaintiff’s fall. Defendants offered no evidence on that issue:

While the homeowners demonstrated that the section of the sidewalk containing the defect on which the plaintiff allegedly tripped did not abut their property, their submissions in support of their motion also included evidence that the sidewalk flag on one side of the defect—which was not level with the adjacent flag, resulting in the height differential on which the plaintiff tripped—extended several feet onto their side of the property line. To meet their prima facie burden, the homeowners were “required to do more than simply demonstrate that the alleged defect was on another landowner’s property” … . They were required to make a prima facie showing that they maintained the portion of the sidewalk abutting their own property in a reasonably safe condition, or that any failure to do so was not a proximate cause of the plaintiff’s injuries … . Kuritsky v Meshenberg, 2022 NY Slip Op 07066, Second Dept 12-14-22

Practice Point: Here the village code placed responsibility for maintaining sidewalks in a reasonably safe condition on the abutting property owners. The raised portion of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property. But several feet of that same sidewalk flag extended in front of defendants’ property. To warrant summary the defendants were required to show either that they maintained the portion of the sidewalk which abutted their property in a reasonably safe condition, or that the failure to do so was not the proximate cause of plaintiff’s fall. The defendants presented no evidence on the issue.

 

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RESETTLEMENT OF THE JUDGMENT OF DIVORCE WAS PROPER ONLY TO THE EXTENT OF CORRECTING A MISTAKE IN THE JUDGMENT; RESETTLEMENT SHOULD NOT HAVE BEEN USED TO AMEND THE JUDGMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judgment of divorce should have been resettled to the extent that the judgment conform with the stipulation. But the judgment should not have been modified to include a provision which was not in the stipulation. Resettlement cannot be used to amend the judgment, as opposed to correcting a mistake:

Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement … . Here, although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation. Specifically, the stipulation contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. …

… Supreme Court should have denied that branch of the defendant’s motion which was to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children … . The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a] …). Ferrigan v Ferrigan, 2022 NY Slip Op 07058, Second Dept 12-14-22

Practice Point: Here resettlement of the judgment of divorce pursuant to CPLR 5019 was appropriate only to the extent of correcting a mistake by conforming the judgment to the stipulation. Resettlement should not have been used to amend the judgment to include a provision which was not in the stipulation.

 

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PLAINTIFF BANK MADE A DEFECTIVE MOTION (WHICH WAS REJECTED) FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT AND DID NOT CORRECT THE ERRORS IN THE MOTION FOR TEN YEARS; THE MAJORITY HELD THE ACTION HAD NOT BEEN ABANDONED, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND THE ACTION SHOULD BE RESTORED TO THE CALENDAR (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint, over an extensive dissent, determined plaintiff bank in this foreclosure action, by filing a motion for an order of reference within one year of defendant’s default, demonstrated it did not intend to abandon the action and the matter, therefore, should be restored to the calendar. The facts that the motion was initially rejected and plaintiff delayed ten years before addressing the defects in the motion did not require a different result:

Supreme Court erred in, sua sponte, directing dismissal of the complaint in this action pursuant to CPLR 3215(c). The plaintiff demonstrated that it filed a motion, inter alia, for an order of reference on October 24, 2008, which was within one year of the defendants’ default in the action. Presenting this motion to the court was sufficient to demonstrate the plaintiff’s intent to have the action proceed, notwithstanding that the motion papers were ultimately rejected by the court as defective … .. Although our dissenting colleague notes that the plaintiff thereafter failed to explain its failure to fix the defects that resulted in the motion papers being rejected for a period of 10 years, once a plaintiff establishes “compliance with CPLR 3215(c),” it is “not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” ,,, ,Thus, because the plaintiff did not abandon the action, the court should have granted the plaintiff’s motion to vacate the dismissal order and to restore the action to the active calendar … . Deutsche Bank Natl. Trust Co. v Lamarre, 2022 NY Slip Op 07056, Second Dept 12-14-22

Practice Point: The plaintiff bank in this foreclosure action made a defective motion for an order of reference within one year of defendant’s default. That motion was sufficient to demonstrate plaintiff did not intend to abandon the action, even though motion was rejected and plaintiff did not correct the defects in the motion for ten years. The judge should not have, sua sponte, dismissed the complaint and the matter should have been restored to the calendar.

 

AFTER DEFENDANT’S DEFAULT AND FOLLOWING AN INQUEST ON DAMAGES PLAINTIFF WAS AWARDED ABOUT $275,000; THE JUDGE ORDERED PLAINTIFF TO SUBMIT A NOTICE OF SETTLEMENT AND A PROPOSED JUDGMENT WITHIN 60 DAYS AS REQUIRED BY 22 NYCRR 202.48; PLANTIFF DID NOT DO SO FOR MORE THAN TWO AND A HALF YEARS; THE ORDER GRANTING THE DEFAULT JUDGMENT AND THE DECISION ON THE INQUEST WERE VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the order granting a default judgment and the decision awarding nearly $275,000 must be vacated because plaintiff did not submit a notice of settlement and a proposed judgment within 60 days as required by 22 NYCRR 202.48:

Pursuant to 22 NYCRR 202.48(a), “[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.” “Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (id. § 202.48[b]). Here, it is undisputed that, on January 10, 2017, the plaintiff was directed to settle a judgment on notice. Thus, pursuant to 22 NYCRR 202.48(a), the plaintiff was required to submit a notice of settlement and proposed judgment within 60 days after January 10, 2017 … . It is also undisputed that the plaintiff failed to submit a notice of settlement and proposed judgment until July 2, 2019, nearly 2½ years after the Supreme Court directed the plaintiff to settle a judgment on notice. Thus, the plaintiff failed to timely settle a judgment pursuant to the requirements of 22 NYCRR 202.48(a).

… [T]he plaintiff failed to show good cause for his lengthy delay in submitting a notice of settlement and proposed judgment in compliance with the Supreme Court’s directive … . Thus, under the particular circumstances of this case, the court should have granted that branch of the defendant’s motion which was pursuant to 22 NYCRR 202.48 to vacate the order dated July 23, 2014. … [T]he decision rendered after the inquest must also be vacated. Cruz v Pierce, 2022 NY Slip Op 07054, Second Dept 12-14-22

Practice Point: Here plaintiff was granted a default judgment and, after an inquest of damages, was awarded nearly $275,000. The judge ordered plaintiff to submit a notice of settlement and a proposed judgment within 60 days as required by 22 NYCRR 202.48. Plaintiff failed to do so and the order granting the default judgment and the decision awarding damages were vacated.

 

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