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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (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 submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that it properly served the defendants. Instead, the plaintiff relied on the affidavit of Carlos Bernal, an authorized representative of the plaintiff’s loan servicing company. Although Bernal averred to have personal knowledge of the company’s record keeping systems, he did not purport to be familiar with the office procedure for mailing notices once they have been generated, and, therefore, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Further, the unsigned certified mail receipts, bearing no postmark from the United States Postal Service, do not prove that the notices were actually mailed … , and, in any event, the plaintiff produced no evidence that the notices were mailed by regular first-class mail … . Since 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… . Pennymac Corp. v Levy, 2022 NY Slip Op 04732, Second Dept 7-27-22

Practice Point: The bank in a foreclosure action must demonstrate strict compliance with the requirements for mailing the RPAPL 1304 notice. Failure to demonstrate strict compliance with the mailing requirements with admissible evidence precludes summary judgment.

 

GRANDMOTHER’S PETITION TO MODIFY THE VISITATION ARRANGEMENT SHOULD HAVE BEEN GRANTED; MOTHER’S VIOLATION OF THE ORDER ALLOWING VISITATION BY GRANDMOTHER CONSTITUTED A CHANGE IN CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the mother’s refusal to allow visitation with the child by the paternal grandmother, in violation of a court order, constituted and change in circumstances warranting the granting of grandmother’s petition to modify the visitation arrangement:

… [T]he paternal grandmother filed a petition to modify the order … , so as to establish a visitation schedule … , as well as a petition alleging that the mother was in violation of the order … . Following a hearing … the Family Court denied the modification petition and the violation petition … .

… [C]ontrary to the Family Court’s determination, the mother’s refusal to consent to any visitation between the child and the paternal grandmother pursuant to the March 19, 2018 order constituted a sufficient change in circumstances for the court to determine whether modification of the existing visitation arrangement was in the child’s best interests … . Moreover, the court’s determination that visitation with the paternal grandmother was not in the best interests of the child lacked a sound and substantial basis in the record. Although there is some history of animosity between the parties, “[a]nimosity alone is insufficient to deny visitation” … , and there is no indication in the record that the poor relationship between the parties had any adverse effect on the child such that the resumption of visitation would not be in the child’s best interests … .. We therefore remit the matter to the Family Court … to establish an appropriate visitation schedule … . Matter of Dubose v Jackson, 2022 NY Slip Op 04723, Second Dept 7-27-22

Practice Point: Here grandmother had been awarded visitation rights with the child. Mother’s violation of the order allowing visitation by grandmother constituted a change in circumstances warranting the granting of grandmother’s petition and modification of the visitation schedule.

 

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THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated the failure to issue a timely decision as a denial by default. which it then annulled, ordering the town to issue the permit and the variance; and (3) Supreme Court should not have denied the Board’s motion to vacate Supreme Court’s order and judgment (ordering the issuance of the permit and variance):

Pursuant to Town Law § 267-a(8), the Board must render a decision within 62 days after the close of the hearing. The Town Law also contains a default provision which provides that if the Board, in exercising its appellate jurisdiction, fails to render a decision within 62 days of the hearing, the application is deemed denied (see id. § 267-a[13][b]). …

A proceeding to annul a determination by an administrative body “should not be concluded in the petitioner’s favor merely upon the basis of a failure to answer the petition on the return date thereof, unless it appears that such failure to plead was intentional and that the administrative body has no intention to have the controversy determined on the merits” … . Here, there was no evidence demonstrating a deliberate default by the Board … .

Contrary to the petitioner’s contention, its application for a special exception permit was not denied by default. The Board’s failure to comply with the time period prescribed by Town Law § 267-a(8) only results in a denial by default when the Board exercises its appellate jurisdiction (see id. § 267-a[13][b]). The Board exercises its original jurisdiction in special exception cases … , and thus, there was no denial by default of the petitioner’s application for a special exception permit … . With no final determination having been rendered on the application for a special exception permit, that issue was not ripe for judicial review, and the Supreme Court lacked subject matter jurisdiction over that issue … . We note that ripeness “is a matter pertaining to subject matter jurisdiction which may be raised at any time, including sua sponte” … . Matter of 999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 2022 NY Slip Op 04721, Second Dept 7-29-22

Practice Point: A town Board of Appeals’ failure to issue a decision on an application for a permit and an area variance within the 62 days prescribed by the Town Law is not a denial of the petition by default. Supreme Court, therefore, did not have subject matter jurisdiction over he purported “denial by default” and the matter was not ripe for review.

 

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DEFENDANT HOMEOWNER DID NOT HAVE THE OPPORTUNITY TO CONTROL THE CONDUCT OF HER ESTRANGED HUSBAND WHO ALLEGEDLY ASSAULTED PLAINTIFF IN DEFENDANT’S HOME; THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES WAS THE ESTRANGED HUSBAND’S ACT; DEFENDANT HOMEOWNER’S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant homeowner’s (Portelli’s) motion to dismiss the negligence action against her based upon an assault upon plaintiff by Portelli’s estranged husband at Portelli’s home should have been dismissed:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as the result of an assault by the defendant Robert DiGesu that took place at a house owned by his estranged wife, the defendant Susan M. Portelli. * * *

Homeowners have a duty to act in a reasonable manner to prevent harm to those on their property … . This includes “the duty to control the conduct of third persons on their premises when the homeowners have the opportunity to control such persons and are reasonably aware of the need for such control” … .

Portelli did not have the opportunity to control DiGesu’s conduct … , nor would it have been reasonable for her to have known of the need to control DiGesu’s conduct so as to protect the plaintiff from DiGesu’s unexpected assault … . Portelli’s alleged acts or omissions were not a proximate cause of the plaintiff’s injuries but “merely furnished the conditions for the event’s occurrence” … . The sole proximate cause of the plaintiff’s injuries was DiGesu’s assault … . Maruca v DiGesu, 2022 NY Slip Op 04719, Second Dept 7-29-22

Practice Point; Homeowners have a duty to act reasonably to prevent harm to those oh their property. Here, however, defendant homeowner did not have the opportunity to control her estranged husband’s conduct at the time he allegedly assaulted the plaintiff in defendant’s home. Therefore the sole proximate of plaintiff’s injuries was the estranged husband’s act and defendant’s motion to dismiss the complaint should have been granted.

 

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THE BANK DID NOT PRESENT EVIDENCE IN ADMISSIBLE FORM TO SUPPORT ITS CLAIM THAT DEFENDANT ACKNOWLEDGED THE MORTGAGE DEBT, STARTING THE STATUTE OF LIMITATIONS ANEW; DEFENDANT’S MOTION TO DISMISS THE FORECLOSURE ACTION AS UNTIMELY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was commenced after the statute of limitations had run. The bank claimed the defendant acknowledged the debt in a loan modification agreement, starting the statute of limitations anew. But the bank did not present evidence of the agreement in admissible form:

The plaintiff argues that the defendant entered into a loan modification agreement, which constituted an acknowledgment of the mortgage debt under General Obligations Law § 17-101 sufficient to reset the statute of limitations to commence a future foreclosure action on the mortgage. “General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt” … . “To constitute a valid acknowledgment, a ‘writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it'” … . “In order to demonstrate that the statute of limitations has been renewed by a partial payment, it must be shown that the payment was accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” … . Bayview Loan Servicing, LLC v Paniagua, 2022 NY Slip Op 04708, Second Dept 7-27-22

Practice Point: Plaintiff bank did not demonstrate defendant acknowledged the mortgage debt in a loan modification agreement (thereby re-starting the statute of limitation for a foreclosure action). The evidence of the debt-acknowledgment presented by the bank did not meet the requirements of General Obligations Law 17-101. Therefore the statute of limitations was not revived. Defendant’s motion to dismiss the foreclosure complaint as untimely should have been granted.

 

PLAINTIFF FELL THROUGH PLANKING WHICH DID NOT ADEQUATELY PROTECT A SHAFT OPENING; THE FACT THAT PLAINTIFF’S FOREMAN INSTRUCTED PLAINTIFF NOT TO ENTER THE SHAFT SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO SUMMARY JUDGMENT ON A LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. The fact that plaintiff’s employer instructed him not to enter the shaft where plaintiff fell to the floor below spoke to comparative negligence which is not a bar to summary judgment on a Labor Law 240(1) cause of action:

The injured plaintiff allegedly was injured when he stepped onto aluminum planks that lay across the unobstructed shaft opening on the sixteenth floor. The planks gave way beneath him and caused him to fall to a platform across the shaft on the fifteenth floor. * * *

… [Deposition testimony] established that the shaft opening was not properly protected so as to prevent workplace accidents … . … [Defendants] failed to establish, as a matter of law, that the injured plaintiff’s failure to heed the instructions of the … foreman … not to enter the shaft constituted the sole proximate cause of his injuries because “an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment” … . “A worker’s injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim” … . Zong Wang Yang v City of New York, 2022 NY Slip Op 04761, Second Dept 7-27-22

Practice Point: Plaintiff fell through planking placed over a shaft after he was instructed not to enter the inadequately protected shaft-area. Failure to heed the instruction speaks to comparative negligence which is not a bar to summary judgment on a Labor Law 240(1) cause of action.

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD HAVE BEEN GRANTED: ALTHOUGH A PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT, THE ISSUE CAN BE DECIDED AT THE SUMMARY JUDGMENT STAGE WHERE PLAINTIFF MOVES FOR SUMMARY JUDGMENT DISMISSING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE; PLAINTIFF’S MOTION WAS NOT PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) plaintiff pedestrian was entitled to summary judgment in this pedestrian-vehicle accident case; and (2)  plaintiff’s motion for summary judgment was not premature, The court noted that, although plaintiff’s comparative negligence is not a bar to summary judgment, the issue can still be considered at the summary judgment stage when plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense:

The plaintiff submitted evidence demonstrating that she was approximately halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was making a right turn, failed to yield the right-of-way and struck her, and that the defendant did not see the plaintiff in the crosswalk while making his turn … . The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk … . In opposition, the defendant failed to raise a triable issue of fact as to his negligence or whether the plaintiff was comparatively at fault in the happening of the accident … .

… [P]laintiff’s motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … .The “mere hope or speculation” that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff’s motion … . Xiuying Cui v Hussain, 2022 NY Slip Op 04759, Second Dept 7-27-22

Practice Point: Although summary judgment in a traffic accident case can be awarded without consideration of plaintiff’s comparative negligence, the issue can be considered at the summary judgment stage when the plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense.

Practice Point: Here the court found that plaintiff’s summary judgment motion was not premature because the defendant did not demonstrate further discovery would lead to relevant evidence.

 

FAILURE TO INFORM THE DEFENDANT OF THE SPECIFIC OR MAXIMUM PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVOLUNTARY (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not voluntary because defendant was not informed of the specific or maximum period of postrelease supervision to which defendant would be sentenced:

“To meet due process requirements, a defendant must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action [and,] [w]ithout such procedures, vacatur of the plea is required” … . “It is not enough for a court to generally inform a defendant that a term of postrelease supervision will be imposed as a part of the sentence” … .. “Rather, for a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed” … . People v Wolfe, 2022 NY Slip Op 04745, Second Dept 7-27-22

Practice Point: Failure to inform the defendant of the specific or maximum period of postrelease supervision aspect of the sentence rendered the guilty plea involuntary.

 

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THE EVIDENCE THE COMPLAINANT SUFFERED “SERIOUS PHYSICAL INJURY” FROM MULTIPLE STAB WOUNDS WAS LEGALLY INSUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department reduced defendant’s convictions to attempted gang assault first, attempted assault first, attempted robbery first and attempted assault second because the proof the complainant suffered “serious physical injury” was lacking:

… [W]e find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . People v Mayancela, 2022 NY Slip Op 04741, Second Dept 7-27-22

Practice Point: Here, although the complainant was stabbed multiple times, the wounds did not damage any organs and were treated with sutures. Therefore the proof the complainant suffered “serious physical injury” was legally insufficient. The convictions were reduced to attempted gang assault, assault and robbery.

 

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THE BUILDING DEFENDANTS DEMONSTRATED THE AREA WHERE PLAINTIFF ALLEGED SHE SLIPPED AND FELL ON WATER ON THE FLOOR WAS INSPECTED AND FOUND TO BE DRY CLOSE IN TIME TO THE ALLEGED FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of a building porter stating that the area where plaintiff slipped and fell was dry when he inspected shortly before the alleged fall warranted granting defendants’ summary judgment motion. Plaintiff alleged she slipped and fell on water ono the floor:

…[T]the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the hazardous condition or have actual or constructive notice of it. In support of the motion, the defendants submitted a transcript of the deposition testimony and affidavit of the building’s porter, which established that, shortly before the accident, the porter traversed the hallway where the accident occurred, inspected the floor for wetness, and observed that the floor was dry … . Serebrenik v Chelsea Apts., LLC, 2022 NY Slip Op 04658, Second Dept 7-20-22

Practice Point: When a defendant brings a summary judgment motion in a slip and fall case, the motion papers must demonstrate the defendant did not create the alleged dangerous condition and did not have notice of the alleged dangerous condition. If defendant can show the area was inspected close in time to the fall and the area was clean (or dry in this case), the defendant will have demonstrated a lack of constructive notice of the condition. Absent evidence to the contrary presented in opposition, summary judgment in favor of the defendant is warranted.

 

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