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PLAINTIFF BANK DID NOT SEND THE 90-DAY FORECLOSURE NOTICE IN A SEPARATE ENVELOPE AS REQUIRED BY RPAPL 1304; THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted because the plaintiff did not sent the RPAPL 1304 notice in a separate envelope. Defendants’ motion for summary judgment should have been granted for the same reason:

… [T]he copies of the 90-day notice submitted by the plaintiff in support of its motion included additional notices not contemplated by RPAPL 1304(2). The plaintiff acknowledged that the envelopes it sent to the defendants, which contained the requisite RPAPL 1304 notice, also included a separate notice pertaining to the rights of a debtor in military service and a debtor in bankruptcy, among others. This Court recently determined, in Bank of America, N.A. v Kessler (202 AD3d 10), that RPAPL 1304(2) requires that the requisite notice under its provision be mailed in an envelope separate from any other notice. Since the plaintiff failed to demonstrate that the RPAPL 1304 notice was “served in an envelope that was separate from any other mailing or notice” … . …

… [A]s the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them “by showing that the plaintiff failed to comply with RPAPL 1304 when it sent additional material in the same envelopes as the requisite notice under RPAPL 1304,” and as the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court should have granted the defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them … . Wells Fargo Bank N.A. v Bedell, 2022 NY Slip Op 03413, Second Dept 5-25-22

Practice Point: If the bank doesn’t send the foreclosure notice required by RPAPL 1304 in a separate envelope, the defendants in the foreclosure action are entitled to summary judgment.

 

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PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT SEE THE CONDITION THAT CAUSED HIM TO FALL NEAR A SINK IN DEFENDANTS’ BATHROOM, BUT HIS PANTS WERE WET AFTER THE FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate plaintiff could not identify the cause of his slip and fall. Plaintiff fell near a sink in defendants’ bathroom. Although he did not see the condition which caused him to fall, his pants were wet after the fall:

… [T]he defendants failed to establish, prima facie, that the plaintiff did not know what had caused him to fall. The plaintiff testified at his deposition that he did not see the condition that caused him to fall prior to the accident. However, he testified that, after he fell, his pants became wet. “Contrary to the defendants’ contention, this testimony does not establish that the cause of the plaintiff’s fall cannot be identified without engaging in speculation” … . Redendo v Central Ave. Chrysler Jeep, Inc., 2022 NY Slip Op 03411, Second Dept 5-25-22

Practice Point: Plaintiff did not see the condition which caused him to fall near a sink in defendants’ bathroom, but his pants were wet after the fall. Defendants were not entitled to summary judgment on the ground the plaintiff could not identify the cause of his fall.

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PRESUMABLY THE ROBBERY AND GRAND LARCENY CHARGES STEMMED FROM THE THEFT OF THE TAXI CAB (THE FACTS ARE NOT EXPLAINED); THE ACQUITTAL OF UNAUTHORIZED USE OF A MOTOR VEHICLE RENDERED THE ROBBERY AND GRAND LARCENY CONVICTIONS REPUGNANT (SECOND DEPT).

The Second Department vacated defendant’s robbery second and grand larceny fourth convictions as repugnant to the acquittal of unauthorized use of a vehicle third:

The defendant was charged with various crimes arising from an incident during which the defendant, a codefendant, and a third perpetrator who was never apprehended, robbed the complainant, a cab driver, at knife point. The jury convicted the defendant of robbery in the first degree (Penal Law § 160.15[3]), robbery in the second degree (id. § 160.10[3]), grand larceny in the fourth degree (id. § 155.30[8]), and menacing in the second degree (id. § 120.14[1]), and acquitted him of unauthorized use of a vehicle in the third degree (id. § 165.05[1]).

“A verdict is repugnant when, evaluated only in terms of the elements of the crimes as charged to the jury—and without regard to the evidence as to what actually occurred—acquittal on one count necessarily negates an . . . element of a crime of which the defendant was convicted” … .. Here, as the crimes were charged to the jury, the acquittal on the charge of unauthorized use of a vehicle in the third degree rendered repugnant the convictions of robbery in the second degree and grand larceny in the fourth degree … . People v Rodriguez, 2022 NY Slip Op 03403, Second Dept 5-25-22

Practice Point: A rare example of a repugnant verdict requiring vacation of the convictions. The facts are not explained. The Second Department determined the acquittal of unauthorized use of a vehicle rendered the robbery and grand larceny convictions repugnant. Presumably the charges stemmed from the theft of the vehicle.

 

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THE STOP OF THE TAXI IN WHICH DEFENDANT WAS A PASSENGER WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A CRIME; BECAUSE DEFENDANT PLED GUILTY TO ALL OFFENSES BASED UPON A PROMISE OF CONCURRENT SENTENCES, ALL CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s convictions by guilty pleas, determined the police officer who stopped the taxi in which defendant was a passenger did not have probable cause to believe defendant had committed a crime. Because defendant pled guilty to several offenses based upon a promise of concurrent sentences, all convictions were reversed:

Upon our evaluation of the totality of the circumstances in this case, we conclude that, at the time the police officer stopped the taxi in which the defendant was a passenger, the officer lacked reasonable suspicion to believe that the defendant had committed a crime. The stop was based merely on the report of an identified citizen, made 40 minutes after the fight had occurred, that the neighbor with whom she was talking to on the phone was presently observing the defendant getting into a black taxi on the block where the fight occurred. There was no evidence that the informant or the neighbor saw the fight, and the neighbor, who testified at the hearing, did not state that she knew that the defendant was involved in the fight. Indeed, the police officer who stopped the taxi admitted that, when he made the stop, he did not know whether the defendant was a victim, a perpetrator, or involved “in anything.” Under these circumstances, the gun recovered by that officer upon the vehicle stop should have been suppressed … . …

The defendant correctly contends that the judgments relating to the drug cases also must be reversed inasmuch as his pleas of guilty in those cases were premised on the promise of sentences that would run concurrently with the sentence imposed on the weapon possession charge … . People v Gomez, 2022 NY Slip Op 03399, Second Dept 5-25-22

Practice Point: One of the charges to which defendant pled guilty was overturned because the police did not have probable cause to make a vehicle stop. The guilty pleas to all the charges were reversed because of the promise the sentences would run concurrently with the sentence for the overturned conviction.

 

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THE BURGLARY COUNT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT WAS ARMED WITH A “KNIFE” WHICH IS NOT NECESSARILY A “DEADLY WEAPON;” THE ATTEMPT TO AMEND THE COUNT WAS NOT AUTHORIZED; THE SANDOVAL RULING WAS (HARMLESS) ERROR (SECOND DEPT).

The Second Department dismissed a jurisdictionally defective count of the indictment, held the People’s attempt to amend that count was not authorized, held that certain Sandoval evidence should not have been admitted, but deemed the Sandoval error harmless and upheld defendant’s convictions on the other counts:

… [C]ount 1 of the indictment alleged that “in the course of effecting entry into said dwelling,” the defendant “was armed with a dangerous weapon, to wit: a knife.” Inasmuch as the offense of burglary in the first degree requires that the defendant be armed with a “deadly weapon,” a term which is specifically defined in Penal Law § 10.00(12) and which definition includes only certain specified knives, count 1 of the indictment was jurisdictionally defective because it failed to effectively charge the defendant with the commission of a crime (see id. §§ 10.00, 140.30[1]).

… CPL 200.70(2)(a) prohibits any amendment of an indictment when the amendment is needed to cure “[a] failure thereof to charge or state an offense” … .

… Although “questioning concerning other crimes is not automatically precluded simply because the crimes to be inquired about are similar to the crimes charged” … , “‘cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility'” … . People v Bloome, 2022 NY Slip Op 03398, Second Dept 5-25-22

Practice Point: Only certain knives meet the definition of “deadly weapon” as used in the burglary first statute. Therefore the count which alleged defendant was armed with a knife did not allege burglary first and was therefore jurisdictionally defective. A count which does not state an offense cannot be amended pursuant to CPL 200.70. The Sandoval ruling, which allowed defendant to be cross-examined about crimes similar to those with which he was charged, was (harmless) error.

 

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DEFENDANT ATTEMPTED A LEFT TURN IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1141; PLANTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment in this intersection traffic accident case should have been granted. Plaintiff was a passenger in a taxi cab when the cab collided with the Katz-defendants’ vehicle which was making a left turn in front of the cab:

“Pursuant to Vehicle and Traffic Law § 1141, ‘[t]he operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle that is within the intersection or so close to it as to constitute an immediate hazard'” … . “A violation of this statute constitutes negligence per se” … . Here, the evidence submitted by the plaintiff in support of her motion, which included the deposition testimony of Gabriel Katz as to the happening of the accident, established, prima facie, that Gabriel Katz was negligent in making a left turn when it was not safe for him to do so in violation of Vehicle and Traffic Law §§ 1141 and 1163, and that his negligence was a proximate cause of the collision … . While there are some discrepancies between the deposition testimony of the plaintiff and Gabriel Katz as to the relative position of the vehicles at the time of the impact, even under Gabriel Katz’s account, he was “negligent in attempting to make a left turn when the turn could not be made with reasonable safety” … . In opposition, the Katz defendants failed to raise a triable issue of fact. Contrary to their contention, the evidence did not support the possible applicability of the emergency doctrine under the circumstances … . Lindo v Katz, 2022 NY Slip Op 03379, Second Dept 5-25-22

Practice Point: A left turn in violation of Vehicle and Traffic Law 1141 is negligence per se.

 

WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s motion to change venue should have been denied. Unless a party follows the special procedure in CPLR 511(a) and (b), which requires making a demand on the other party before bringing a motion, a motion to change venue must be brought in the county where the action was started. Here the defendant did not use the special procedure and brought the motion to change venue in the county where defendant sought to move the proceedings. That was the wrong county for the motion:

This Court has stated that “[w]here . . . a motion to change venue . . . is made in the ‘wrong county’ and timely objection is raised to the improper venue of the motion itself, Special Term should deny the motion” … . Contrary to the defendant’s contention, neither CPLR 501 nor CPLR 511(b) provided a basis for it to notice the motion in Nassau County. Allen v Morningside Acquisition I, LLC, 2022 NY Slip Op 03219, Second Dept 5-18-22

Practice Point: Here the party made a motion to change venue in the county to which the party wanted venue changed. That was deemed the “wrong county” and the motion was dismissed because the party did not first use the special procedure in CPLR 511 (a) an (b) which requires making a demand on the other party before bringing the motion.

 

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​ WHEN THE FAILURE TO PRESENT FACTS IN A PRIOR MOTION IS NOT JUSTIFIED, THE SECOND MOTION DOES NOT FIT THE CRITERIA FOR A MOTION TO RENEW OR AN ALLOWABLE SUCCESSIVE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion in this foreclosure action did not fit the criteria for a motion to renew or an allowable successive summary judgment motion. The judgment of foreclosure should not have been granted;

“When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” … . Here, the plaintiff failed to provide any justification for its failure to present the new evidence supporting its renewal motion as part of its prior motion.

Even considered as a successive motion for summary judgment, such a motion “should not be entertained in the absence of good cause, such as a showing of newly discovered evidence” … . Wells Fargo Bank, N.A. v Osias, 2022 NY Slip Op 03275, Second Dept 5-18-22

Practice Point: Attempting to bring a second motion which includes “new” facts, without a reasonable justification for leaving them out of the first motion, does not fit the criteria for a motion to renew or an allowable successive summary judgment motion.

 

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CLAIMANTS’ MOTION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM IN THIS CONSTRUCTION-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ should have been allowed to file a late notice of claim in this construction accident case. The delay in filing was minimal, claimants made a sufficient showing the defendants were not prejudiced by the delay and defendants did not demonstrate prejudice:

The claimants showed that any delay in ascertaining actual notice of all of the essential facts underlying the claims was minimal … , and that the defendants were provided with an adequate opportunity to investigate the circumstances underlying the claims in light of, among other things, the information contained in an accident report and a medical release, which were both prepared by the defendants’ general contractor on the date of the accident…. . …

… [T]he defendants failed to come forward with “a particularized evidentiary showing that [they] will be substantially prejudiced” if the late claims are permitted … . Schnier v New York State Thruway Auth., 2022 NY Slip Op 03267, Second Dept 5-18-22

Practice Point: The claimants adequately demonstrated defendants in this construction-accident case were not prejudiced by the minimal delay in filing the notice of claim and defendants were unable to demonstrate any prejudice as they had time to investigate the incident after timely receiving the accident report. Claimants’ motion for leave to file and serve a late notice of claim should have been granted.

 

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IN THIS FORECLOSURE ACTION, THE RPAPL 1304 NOTICE DID NOT INCLUDE THE REQUIRED INFORMATION AND THE PROOF OF MAILING OF THE NOTICE WAS DEFICIENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined proof of mailing of the RPAPL 1304 notice and failure to comply with the content-requirements for the RPAPL 1304 notice in this foreclosure action warranted denial of the plaintiff’s motion for summary judgment:

The respondent failed to establish the plaintiff’s strict compliance with RPAPL 1304. The respondent submitted an affidavit of Alfreda Johnson, a “Foreclosure Specialist” of Fay Servicing, LLC (hereinafter Fay), the plaintiff’s servicer. Johnson did not have personal knowledge of the purported mailing … . Furthermore, while Johnson averred that she was familiar with Fay’s mailing practices and procedures, the record indicates that the notices were not mailed by Fay. The record indicates that the notices were mailed by an entity known as “Seterus” … . Johnson does not address this fact at all, let alone demonstrate that she was familiar with Seterus’s mailing practices and procedures. Thus, the respondent failed to establish that the 90-day notices were properly mailed in strict compliance with RPAPL 1304 … .

Moreover, the content of the 90-day notices did not strictly comply with RPAPL 1304 … . Here, the 90-day notices omitted information that was required by RPAPL 1304 … . Prof-2014-S2 Legal Tit. Trust II v DeMarco, 2022 NY Slip Op 03263, Second Dept 5-18-22

Practice Point: Here, in this foreclosure action, not only was proof of mailing the RPAPL 1304 notice insufficient, but the notice did not include all the required information.

 

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