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THE PROCESS SERVER IN THIS FORECLOSURE ACTION WAS TOLD BY DEFENDANT’S DAUGHTER THAT HE HAD THE RIGHT ADDRESS; BUT, IN FACT, DEFENDANT DID NOT RESIDE AT THAT ADDRESS; SERVICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, in a matter of first impression, determined the service of process in this foreclosure action was invalid. A relative of a defendant (daughter) told the process service that the address where service was made was proper, but, in fact, the defendant did not reside at that address:

This appeal presents a simple question that has not previously arisen: whether an affirmative misrepresentation by a relative of a defendant at a residential address that the address is proper, which is relied upon by a process server, may establish that service was valid, if evidence establishes that the address is not, in fact, the defendant’s actual dwelling place or usual place of abode. We hold that, under the circumstances of this action, service of process upon the defendant at an address that was not actually his dwelling place or usual place of abode was defective, notwithstanding information provided to the process server at the doorstep. * * *

For a defendant to be estopped from raising a claim of defective service, the conduct misleading the process server must be the defendant’s conduct, as distinguished from conduct of a third party … . Everbank v Kelly, 2022 NY Slip Op 00651, Second Dept 2-2-22

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there was a question of fact whether the continuous treatment doctrine applied making this dental malpractice action timely; and (2) plaintiff’s breach of contract action against defendant dentist (Irlin) should not have been dismissed:

… [T]he plaintiff submitted an affirmation of her current treating dentist, who opined that the plaintiff initially sought treatment from Irlin in order to obtain a permanent prosthetic replacement for the missing teeth in her upper jaw. The plaintiff’s dentist further opined that the numerous surgeries that the plaintiff underwent on her upper jaw to repair and replace implants and prostheses were related to Irlin’s initial alleged malpractice in failing to diagnose the bone condition that caused the implants and prostheses to become loose and need replacement. The record otherwise presents questions of fact as to whether the plaintiff timely initiated return visits to complain and seek corrective treatment from Irlin … . …

… [T]he individual defendants’ own submissions, which included the transcript of the plaintiff’s deposition testimony and numerous signed consent forms written in English, demonstrated that the plaintiff has a cause of action to recover damages for breach of contract against Irlin. The plaintiff testified at her deposition that she agreed to the installation of dental implants and a permanent prosthetic device in her upper jaw because Irlin verbally promised her that it would “last a lifetime,” that she would “treat [the prosthesis] as if” it was her “own teeth,” and that she would only need follow-up appointments for cleanings once every 6 to 12 months, among other things. The individual defendants’ evidence could support the conclusion that the treatment Irlin rendered did not achieve these allegedly promised results. Chvetsova v Family Smile Dental, 2022 NY Slip Op 00650, Second Dept 2-2-22

 

PLAINTIFF ALLEGED SHE WAS INJURED WHEN DEFENDANT’S TREADMILL SUDDENLY ACCELERATED; PLAINTIFF ALLEGED SHE COMPLAINED ABOUT THE TREADMILL-ACCELERATION DAYS BEFORE SHE WAS INJURED, RAISING A QUESTION OF FACT ABOUT DEFENDANT’S ACTUAL NOTICE OF THE DEFECT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant fitness center’s motion for summary judgment in this treadmill-injury case should not have been granted. Plaintiff alleged the treadmill accelerated suddenly. Plaintiff’s deposition was submitted by the defendant in support of its motion. Plaintiff testified she had complained about the treadmill-acceleration several days prior to her injury. The defendant submitted no evidence concerning when the treadmill was last maintained or inspected:

… [T]he plaintiff testified at her deposition that she complained to a front desk employee of the defendant several days prior to the subject accident that the subject treadmill had spontaneously accelerated while the plaintiff was using it, causing her to quickly get off the machine. No inspection or maintenance records for the subject treadmill were submitted by the defendant in support of its motion. While the defendant submitted the deposition testimony of one of its owners, who testified that the defendant never received any complaints about the subject treadmill spontaneously accelerating at any time prior to the subject accident, this merely raised a question of fact, as well as an issue of credibility, that should be decided by the trier of fact. Mermelstein v Campbell Fitness NC, LLC, 2022 NY Slip Op 00419, Second Dept 1-26-22

 

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE NOTE SUBMITTED BY THE BANK TO DEMONSTRATE STANDING TO FORECLOSE WAS THE NOTE SHE SIGNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant had raised a question of fact whether the bank had standing to foreclosure by producing a note that was different from the note submitted by the bank to demonstrate standing:

… [T]he defendant raised a triable issue of fact as to whether the plaintiff had produced the unpaid note and had standing to commence the action, by submitting, among other things, a copy of another version of the note, purportedly produced by the plaintiff in this litigation, bearing a different version of the defendant’s purported signature and initials than the note relied upon by the plaintiff in support of its motion. In an affidavit submitted in opposition to the plaintiff’s motion, the defendant averred that she only signed one copy of the note at closing, and denied that any of the copies of the note produced by the plaintiff were the note she signed … . JPMorgan Chase Bank, N.A. v Rodriguez, 2022 NY Slip Op 00411, Second Dept 1-26-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND 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 defendant’s default and did not demonstrate compliance with the notice provisions of RPAPL 1304:

… [I]n attempting to establish the defendant’s default in payment, the plaintiff relied on the affidavit of Jessica Fernandez, an assistant vice president of Bayview, the plaintiff’s assignee. * * * … [T]he payment history was a record made by Chase, not Bayview. … Fernandez did not attest that she was personally familiar with Chase’s record-keeping practices and procedures …  or that records provided by Chase were incorporated into Bayview’s records and routinely relied upon by Bayview in its own business … . …Fernandez failed to lay a proper foundation for the admission of the payment history and her assertions based on that record were inadmissible … .

The plaintiff also failed to establish, prima facie, its strict compliance with RPAPL 1304. RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” … . “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . …

In support of its motion, the plaintiff submitted a copy of a 90-day notice from the plaintiff, addressed to the defendant at the premises address. … [T]he notice … does not include the list of at least five housing agencies that served the region where the defendant resided … . … [T]he plaintiff failed to submit proof of the actual mailing of the notice, 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 … . JPMorgan Chase Bank, N.A. v Deblinger, 2022 NY Slip Op 00410, Second Dept 1-26-22

 

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SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE; PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a mistrial in this medical malpractice action should have been granted. The trial judge should not have precluded plaintiff’s expert’s testimony on the ground the scope of the testimony exceeded the CPLR 3101 (d) disclosure:

Because portions of the expert’s testimony purportedly fell outside the notice pursuant to CPLR 3101(d), the Supreme Court struck all of this expert’s testimony concerning [defendants] Inglis and Shukla. However, even assuming that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, it was error to strike all of his testimony concerning Inglis and Shukla. … [T]o the extent that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, the relevant subject matter was raised in the bills of particulars and in the expert’s affirmation submitted in opposition to the defendants’ motions for summary judgment. Under these circumstances, the court improvidently struck the expert’s testimony concerning the treatment provided by Inglis and Shukla … .

In addition, the Supreme Court sustained objections to questions of the same expert about whether Mosu departed from the accepted standard of care, for a lack of foundation. The court erred in precluding the expert from testifying as to whether Mosu departed from the accepted standard of care since there was a foundation for the expert’s testimony, including the defendants’ and plaintiff’s trial testimony, and the relevant medical records … . Johnson-Hendy v Mosu, 2022 NY Slip Op 00409, Second Dept 1-26-22

 

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THE TOWN CODE PROVISION WHICH REQUIRES A PROPERTY INSPECTION BEFORE ISSUANCE OF A RENTAL PERMIT DOES NOT VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES BECAUSE THE PROVISION ALLOWS THE LANDLORD TO HAVE THE INSPECTION DONE BY A STATE-LICENSED ENGINEER, AS OPPOSED TO THE TOWN BUILDING INSPECTOR (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town code provision which required a property inspection before issuance of a rental permit is not unconstitutional. Although the provision would be unconstitutional if an inspection by the town building inspector was required (a mandatory warrantless search), the provision also allows the landlord to have the property inspected by a state-licensed engineer:

It is well-settled that “the imposition of a penalty upon a landlord for renting his [or her] premises without first consenting to a warrantless search violates the property owner’s Fourth Amendment rights” … . Here, however, the Town’s rental permit law does not “expressly require . . . an inspection before the issuance or renewal of a permit” … , since a property owner who is applying for a rental permit has the option of obtaining a certification from a state-licensed professional engineer in lieu of submitting to an inspection by a Town building inspector … . Accordingly, the provisions did not violate constitutional provisions against unreasonable searches and seizures … . Infinite Green, Inc. v Town of Babylon, 2022 NY Slip Op 00407, Second Dept 1-26-22

 

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THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304:

… [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the action was commenced … . Moreover, the plaintiff failed to establish its status as the holder of the note at the time of commencement of the action … . * * *

The plaintiff failed to establish … it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . [Plaintiff] failed to provide proof of a standard office mailing procedure and provided no independent evidence of the actual mailing … . For the same reason, the plaintiff failed to establish … it sent the defendant the required notice under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Crosby, 2022 NY Slip Op 00402, Second Dept 1-26-22

 

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STRICT COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof surrounding the mailing of the RPAPL 1304 notice was insufficient:

… “[T]he plaintiff failed to provide evidence 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” … . Citimortgage, Inc. v Leitman, 2022 NY Slip Op 00397, Second Dept 1-26-22

 

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THE BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate strict compliance with the notice requirements of RPAPL 1304. The bank’s motion for summary judgment should not have been granted:

No evidence that the RPAPL 1304 notice was mailed by certified mail to the defendant at the subject property was provided, and the affidavit of a document control officer of the plaintiff’s loan servicer submitted by the plaintiff failed to describe the procedures in place designed to ensure that RPAPL 1304 notices are properly addressed and mailed by both certified and first-class mail … . Since the plaintiff failed to provide evidence of actual mailing of the RPAPL 1304 notice by certified mail to the defendant at the subject property, “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 … . Bank of N.Y. Mellon v Sae Young Min, 2022 NY Slip Op 00393, Second Dept 1-26-22

 

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