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ALTHOUGH THE INSURER DID NOT RECEIVE NOTICE OF THE CLAIM UNTIL 23 MONTHS AFTER THE CAR ACCIDENT, IT WAS NOT PREJUDICED BY THE DELAY AND DID NOT COMMENCE A TIMELY INVESTIGATION OF THE CLAIM; THE DISCLAIMER OF COVERAGE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer (Utica) did not make a timely disclaimer of coverage in this car accident case. Although the insurer did not receive notice of the claim from the insured (Kassie) until 23 months after the accident, it was not prejudiced by that delay and failed to promptly investigate the claim when notice was received:

Utica first received notice of the SUM claim on May 5, 2017, just less than 23 months after the subject accident. Utica’s representative testified at the hearing that, despite the apparent untimeliness of this notice, Utica did not disclaim coverage upon receiving the May 5, 2017 letter because it did not at that time face any specific deadline to take action, so it had not yet been prejudiced by the untimely notice. However, on June 26, 2017, Utica received a letter from Kassie requesting consent to settle with the tortfeasor. Utica was required to respond to the letter requesting consent to settle within 30 days … . Utica’s representative testified at the hearing that it disclaimed coverage after receiving the June 26, 2017 letter, since at that point it was prejudiced by the untimeliness of the notice of claim because it could not complete its investigation before the deadline to respond to the June 26, 2017 letter.

However, Utica failed to present any evidence that upon receipt of the notice of claim it began fulfilling its “duty to promptly and diligently investigate the claim” … . Thus, Utica cannot reasonably claim that it was prejudiced by the untimely notice of claim based on its receipt over seven weeks later of the request from Kassie for consent to settle. Notably, Utica did not claim that it would have been unable to adequately investigate the SUM claim in time to respond to the request for consent to settle even if it had promptly commenced such an investigation upon receiving the notice of claim. Matter of Utica Natl. Ins. of Tex v Kassie, 2022 NY Slip Op 00867, Second Dept 2-9-22​

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate the defendants’ default in this foreclosure action:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form”… . Although Smith [plaintiff’s vice president] averred that she had personal knowledge of the plaintiff’s record-keeping practices and procedures, Smith’s purported knowledge of the alleged default was based upon her review of unidentified business records, which she failed to attach to her affidavit … . Thus, Smith’s assertions regarding the defendants’ alleged default constituted inadmissible hearsay and lacked probative value … . Wells Fargo Bank, N.A. v Gross, 2022 NY Slip Op 00902, Second Dept 2-9-22

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted:

… Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record … . * * *

… Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a “change of circumstances since the [prior] custody determination” … . …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. Matter of Paige v Paige, 2022 NY Slip Op 00866, Second Dept 2-9-22

 

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FATHER ALLEGED CHANGES IN HIS WORK SCHEDULE ALLOWED MORE TIME FOR PARENTAL ACCESS WITH THE CHILD; A HEARING SHOULD HAVE BEEN ORDERED ON FATHER’S MODIFICATION PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined father had submitted sufficient evidence to warrant a hearing on his petition to modify the custody or parental access arrangement:

… [F]ather stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given this change, the father sought expanded parental access with the child. …

Entitlement to a hearing on a modification petition … is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests … . Requiring parents to make this threshold showing before a hearing is ordered serves an important purpose because … litigation of custody and visitation issues is emotionally fraught and “can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents” … .

… Family Court improperly dismissed the father’s petition. … [T]he father’s assertions, which were supported by the requisite threshold evidentiary showing, warranted a hearing to resolve whether the existing parental access arrangement continued to serve the child’s best interests … . Matter of LaPera v Restivo, 2022 NY Slip Op 00863, Second Dept 2-9-22

 

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QUESTION OF FACT WHETHER THE SALES COUNTER AND DISPLAY UNIT INSTALLED AT THE OUTSET OF THE LEASE WAS A TRADE FIXTURE WHICH COULD BE REMOVED BY THE TENANT OR A PERMANENT FIXTURE WHICH COULD NOT BE REMOVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the sales counter and display unit installed on the leased premises was a permanent or trade fixture. Supreme Court had ruled the counter and display unit was a trade fixture which was properly removed by the tenant at the end of the lease:

… [T]he defendants [tenants] failed to establish as a matter of law that the sales counter and customer display unit is a trade fixture that they properly removed from the premises at the end of the lease term. Contrary to the defendants’ contention, the fact that Medi-Fair [tenant], pursuant to the express and agreed upon terms of the lease regarding the tenant fit-up, paid extra for Wallkill [landlord] to construct and install the customized sales counter and customer display unit does not, under the circumstances, make it a trade fixture as a matter of law … . Rather, read together, the articles of the lease pertaining to the tenant fit-up, alterations, and redelivery of the premises at the end of the lease term raise a triable issue of fact as to whether the parties intended items such as the sales counter and customer display unit annexed to the premises by Wallkill [landlord] as part of the initial, interior construction and tenant fit-up, as compared with any post-occupancy alterations and/or additions of fixtures to the premises by Medi-Fair [tenant], to be permanent fixtures of the premises. Wallkill Med. Dev., LLC v Medi-Fair, Inc., 2022 NY Slip Op 00899, Second Dept 2-9-22

 

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THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the proof of compliance with the notice requirements of RPAPL 1304 was insufficient. Therefore plaintiff in this foreclosure action was not entitled to summary judgment:

Since HSBC failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . MTGLQ Invs., L.P. v Cutaj, 2022 NY Slip Op 00858, Second Dept 2-9-22

Similar issues and result in U.S. Bank N.A. v Adams, 2022 NY Slip Op 00896, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v Davidson, 2022 NY Slip Op 00901, Second Dept 2-9-22 which also held the bank’s failure to comply with the “one envelope” rule for the RPAPL 1304 notice can be raised for the first time on appeal.

 

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THE RPAPL 1304 NOTICE DID NOT INLUDE A LIST OF FIVE HOUSING COUNSELING AGENCIES SERVING THE COUNTY WHERE THE PROPERTY IS LOCATED; THE BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the RPAPL 1304 required that the notice of foreclosure include a list of five housing counseling agencies serving the county were the property is located:

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, as it failed to demonstrate that the 90-day notices it sent to the defendants contained the requisite list of five housing counseling agencies serving the county in which the subject property is located … . In support of its motion, the plaintiff submitted the notices pursuant to RPAPL 1304, annexed to which was a list of five agencies. Four of the agencies were located in Queens, and one of the agencies, Hispanic Brotherhood of Rockville Centre, Inc., was located in Nassau County. Thus, the plaintiff failed to establish, prima facie, that all five of the agencies served Queens County. U.S. Bank N.A. v Gordon, 2022 NY Slip Op 00898, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v McMahon, 2022 NY Slip Op 00903, Second Dept 2-9-22

 

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THE FLORIDA DEFENDANTS ADVERTISED THROUGH A NATIONWIDE WEBSITE; THE NEW YORK PLAINTIFFS SOLICITED THE CONTRACT WITH DEFENDANTS; PLAINTIFFS DID NOT MAKE OUT A PRIMA FACIE CASE OF EITHER GENERAL OR SPECIFIC (LONG-ARM) JURISDICTION OVER DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs did not make out a prima facie case of general or specific (long-arm) jurisdiction over the Florida defendants in this breach of contract and fraud action. Through email correspondence the New York plaintiffs entered a contract for the creation of a “Dating App” for which plaintiffs allegedly paid $100,000. Plaintiff alleged defendants never provided the Dating App and sued in New York. The jurisdiction over the breach of contract action was analyzed under the general jurisdiction criteria, and jurisdiction over the fraud (tort) action was analyzed under the specific jurisdiction (long-arm) criteria:

In opposing the separate motions of [defendants], the plaintiffs asserted that jurisdiction over both defendants was proper pursuant to CPLR 301 and 302(a)(1) and (3). “Under modern jurisprudence, a court may assert general all-purpose jurisdiction or specific conduct-linked jurisdiction over a particular defendant”… . Contrary to the plaintiffs’ contention, they did not make a prima facie showing of personal jurisdiction … . The complaint itself establishes that [the individual defendant] is domiciled in Florida and that [the corporate defendant] was incorporated in and has its principal place of business in Florida … . Further, the facts alleged, even if established, do not support a conclusion that [defendant corporation’s] contacts with New York were so “continuous and systematic” …  as to render it “essentially at home” in New York … .

Specific jurisdiction over a defendant is obtained through New York’s long-arm statute, CPLR 302. * * *

“The CPLR 302(a)(1) jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions” … . …

The affidavits … establish that [the corporate defendant] advertises its services nationwide through a website that is not specifically directed toward New York residents or businesses. It is undisputed that the plaintiff … initiated the contact between the parties and solicited the defendants’ services in designing the Dating App. Contrary to the plaintiffs’ contention, [the corporate defendant’s] website does not constitute transacting business within the State. Fanelli v Latman, 2022 NY Slip Op 00849, Second Dept 2-9-22

 

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ALLOWING DRIVING AND PARKING ON A LONG ISLAND BEACH MAY CONSTITUTE A PRIVATE AND PUBLIC NUISANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action for private and public nuisance against the town and village, based upon the code provisions and rules allowing vehicles to drive and park on the beach, should not have been dismissed:

… [P]hotographs of the subject beach area as well as the affidavits of [plaintiff] and her family describing the conditions on the beach raised triable issues of fact as to whether driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, was of an unreasonable character. …

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, contrary to the court’s conclusion, triable issues of fact existed as to whether summer daytime beach driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, endangered the health and safety of members of the public who use that portion of the beach as well as the beach itself, including the lands seaward of the high-water line, which are held in trust for the public. Thomas v Trustees of the Freeholders & Commonalty of the Town of Southampton, 2022 NY Slip Op 00894, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

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