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PLAINTIFF AND DEFENDANTS OWN ADJOINING LOTS ORIGINALLY CONVEYED BY THE SAME GRANTOR WITH A RESTRICTION ALLOWING ONLY ONE RESIDENCE PER LOT; PLAINTIFF HAD THE REQUISITE “VERTICAL PRIVITY” TO ENFORCE THE RESTRICTION WHEN DEFENDANTS SOUGHT TO SUBDIVIDE THEIR LOT; DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE COVENANT WAS UNENFORCEABLE DUE TO RPAPL 1951 BECAUSE THE AREA HAD CHANGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff had “vertical privity” which allowed plaintiff to enforce a covenant in the deed from the original grantor of both plaintiff’s and defendants’ neighboring lots; and (2) defendants raised a triable issue of fact whether the covenant was unenforceable pursuant to RPAPL 1951 due to changes in the area. The covenant restricted each lot one residence. Defendants sough to subdivide their lot:

… [P]laintiff has the requisite vertical privity to enforce the restrictive covenants … . The plaintiff derived title to Lot 5 from the grantor, who subdivided the Lilac Farm subdivision. By deed dated June 4, 1929, the grantor burdened Lot 6, the property conveyed to the defendants’ predecessor in title, by subjecting the conveyance to the restrictive covenants in question, and which accrued to the benefit of the property retained by the grantor, including Lot 5, which was conveyed to the plaintiff’s predecessors in title by deed dated September 20, 1929. The defendants do not allege that the succession of conveyances from the grantor to the plaintiff was not continuous and lawful. Therefore, the plaintiff has the requisite vertical privity and did not need to demonstrate a common plan or scheme for the entire subdivision … . …

… [T]he defendants raised a triable issue of fact as to whether the restrictive covenant prohibiting subdivision of the parcel is unenforceable pursuant to RPAPL 1951 due to changes in the area since the imposition of such covenant … . Shehan v Commisso, 2022 NY Slip Op 00328, Second Dept 1-19-22

 

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EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).

The Second Department, reversing Supreme Court determined; (1) the motion for summary judgment in this traffic accident case was not premature; and (2) plaintiff was entitled to summary judgment on liability. Plaintiff alleged his taxi cab was struck by defendant’s bus which crossed the double yellow line. Party depositions had not yet been taken:

“Pursuant to CPLR 3212(f), where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied” … . “[M]ere hope that some evidence might be uncovered during further discovery is insufficient to deny summary judgment” … . Here, the defendants’ opposition to the plaintiff’s motion consisted solely of legal argument that the motion was premature. However, the defendants did not explain why the bus operator offered no affidavit in opposition countering the plaintiff’s testimony as to how the alleged incident occurred. Moreover, the defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery which would bear on their liability for the alleged incident. …

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … ; instead, “[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Shah v MTA Bus Co., 2022 NY Slip Op 00327, Second Dept 1-19-22

 

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DEFENDANT WAS ENTITLED TO A HEARNG ON HIS MOTION TO VACATE HIS MURDER CONVICTION ON THE GROUND OF ACTUAL INNOCENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his murder conviction on the ground of actual innocence:

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial” … . Further, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty” … . “A prima facie showing of actual innocence is made out when there is ‘a sufficient showing of possible merit to warrant a fuller exploration'” … . Upon a prima facie showing, a hearing should be conducted on a defendant’s claim of actual innocence … .

… [T]he defendant made a prima facie showing based upon the five affidavits from the alleged witnesses that he submitted and [the] recantation of [a witness’s] trial testimony [identifying defendant as the shooter]. People v Green, 2022 NY Slip Op 00315, Second Dept 1-19-22

 

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SUPREME COURT PROPERLY CONSIDERED A SUCCESSIVE AND LATE MOTION FOR SUMMARY JUDGMENT, CRITERIA EXPLAINED; DEFENDANT DEMONSTRATED PLAINTIFF WAS NOT A THIRD-PARTY BENEFICIARY OF THE CONTRACT AT ISSUE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s breach of contract cause of action should have been dismissed because plaintiff did not qualify as a third-party beneficiary of the contract entered into by defendant county. The Second Department noted that Supreme Court properly exercised its discretion in allowing the defendant county to make a successive and late motion for summary judgment:

… [A] subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts” … . … [T]he “Supreme Court is afforded wide latitude with respect to determining whether good cause exists for permitting late motions. It may . . . entertain belated but meritorious motions in the interest of judicial economy where the opposing party fails to demonstrate prejudice” … . …

“A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost” … . * * *

… [T]he County established … that the plaintiff was not a third-party beneficiary of the … contract, by showing that the plaintiff was not the only entity that could recover under the contract, and that the contract did not contain any language evincing the parties’ intent to authorize the plaintiff to enforce any obligations thereunder … . Old Crompond Rd., LLC v County of Westchester, 2022 NY Slip Op 00310, Second Dept 1-19-22​

 

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DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to the manufacturer and retailer of a “hoverboard” on the products liability (design defect), failure to warn and implied warranty causes of action. Plaintiff alleged she was using the hoverboard in accordance with the instructions and was injured. The expert affidavit provided by the defendants was conclusory and did not eliminate questions of fact on the design defect cause of action:

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff’s actions constituted the sole proximate cause of his or her injuries … .

The defendants’ expert, in his affidavit, opined in mere conclusory fashion that the hoverboard was not defectively designed, without providing any explanation of the hoverboard’s design, or any discussion of industry standards or costs. Nor did the expert state whether the defendants had received complaints about any of the other hoverboards they had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the hoverboard was reasonably safe for its intended use … . LaScala v QVC, 2022 NY Slip Op 00305. Second Dept 1-19-22

 

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A DEFENSE WITNESS WHO WOULD HAVE TESTIFIED THAT A KEY PROSECUTION WITNESS HAD A POOR REPUTATION FOR TRUTHFULNESS AND VERACTIY SHOULD NOT HAVE BEEN PROHIBITED FROM TESTIFYING; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the witness who would have testified that the complainant’s mother, a prosecution witness, had a poor reputation for truthfulness and veracity should not have been prohibited from testifying:

… [T]he defendant sought to introduce testimony from Marie Anisca-Oral, a friend of his older sister, on the subject of the reputation for truthfulness and veracity of the eight-year-old complainant’s mother (hereinafter the mother), who testified for the prosecution. In order to lay the foundation for such testimony, Anisca-Oral, a staff sergeant in the United States Army, described a community of seven or eight friends and acquaintances, predominantly of Haitian nationality, and predominantly living within certain neighborhoods in Brooklyn. Anisca-Oral testified that she had known the mother since 1999, that almost everyone she knew also knew the mother, and that every time she saw her acquaintances among this group, the mother’s reputation for truthfulness and veracity was discussed. “[T]he presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid”… . “A reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability” … . “The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury” … . People v Lisene, 2022 NY Slip Op 00194, Second Dept 1-12-22

 

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DEFENDANT REFUSED TO SPEAK WITH HIS ATTORNEY; THE JUDGE DENIED REQUESTS FOR NEW COUNSEL WITHOUT QUESTIONING THE DEFENDANT, WHO WAS PRESENT IN THE COURTROOM; DEFENDANT’S RIGHT TO COUNSEL WAS NOT ADEQUATELY PROTECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s right to counsel had not been adequately protected and returned the case to pre-suppression-hearing status. Defendant refused to speak with his attorney and the judge, despite defendant’s presence in the courtroom, never discussed the issue with the defendant before denying a request to assign new counsel:

… [W]e conclude that the defendant’s right to counsel was not adequately protected. The defendant’s request for new counsel, made through assigned counsel, contained serious factual allegations concerning the defendant’s complaints about his assigned counsel and the breakdown of communications between assigned counsel and the defendant … . Under the circumstances presented here, the Supreme Court failed to meet its ongoing duty to make inquiries to determine whether there was good cause for the requested substitution by denying the request without speaking directly with the defendant … . Thus, reversal is warranted. Further, on the record presented, the matter should be restored to pre-suppression-hearing status. Accordingly, we vacate the court’s suppression determination and remit the matter to the Supreme Court, Kings County, for further proceedings on the indictment. People v English, 2022 NY Slip Op 00189, Second Dept 1-12-22

 

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THE DOCUMENTS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT PRODUCED RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report was inadmissible hearsay because the documents upon which the calculations were based were not produced:

The defendant correctly contends, however, that the referee’s calculation was not substantially supported by the record. Modlin’s [the loan servicer’s] affidavit, which was submitted to the referee for the purpose of establishing the amount due on the mortgage loan, appeared to lay a proper foundation for the admission of the business records on which she relied, including the payment history for the loan, in making her calculations. Modlin averred that she was an authorized signatory of Caliber, U.S. Bank’s loan servicer and attorney-in-fact, that she had reviewed Caliber’s electronic records regarding the defendant’s account, and that she had “knowledge of how those electronic records [were] kept and maintained” … . Modlin further averred that the business records of any prior servicer had been “uploaded and boarded into [Caliber’s] computer records” and were “maintained in connection with the servicing of [the subject] loan”,,, , In addition, U.S. Bank Trust demonstrated Caliber’s authority to act on its behalf by submitting the limited power of attorney.

Nevertheless, computations based on the review of unproduced business records amount to inadmissible hearsay and lack probative value … . Here, U.S. Bank Trust did not submit to the referee copies of the business records upon which Modlin purportedly relied in computing the amount due on the mortgage loan. Consequently, the referee’s findings in that respect were not substantially supported by the record … . U.S. Bank Trust, N.A. v Bank of Am., N.A., 2022 NY Slip Op 00213, Second Dept 1-12-22

 

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THE AGREEMENT WHICH PROVIDED PLAINTIFF WOULD PAY DEFENDANT ABOUT $38,500 AND PLAINTIFF WOULD BE ENTITLED TO MONTHLY PAYMENTS FROM DEFENDANT’S REVENUE TOTALING ABOUT $52,500 WAS NOT A “LOAN” TO WHICH THE USURY DEFENSE COULD BE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contract between plaintiff and defendant (I Do) in which plaintiff paid defendant about $38,500 in return for monthly payments from defendant’s revenue totally about $52,500 did not constitute a “loan” to which the usury defense would apply:

Unless a principal sum advanced is repayable absolutely, the transaction is not a loan. Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy” … .

… [T]he plaintiff established that the transaction set forth in the agreement was not a loan. The terms of the agreement specifically provided for adjustments to the monthly payments made by I Do to the plaintiff based on changes in I Do’s monthly sales. Concomitantly, as the amount of the monthly payments could change, the term of the agreement was not finite. Moreover, no contractual provision existed establishing that a declaration of bankruptcy would constitute an event of default … . Principis Capital, LLC v I Do, Inc., 2022 NY Slip Op 00203, Second Dept 1-12-22

 

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MAKE A MOTION FOR A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL ASSESSMENT PROCEEDING (SECOND DEPT).

The Second Department, reversing the level three SORA risk assessment, determined defense counsel was ineffective for failing to make a motion for a downward departure. The only arguments defense counsel made were without merit, demonstrated a lack of understanding of the facts, and would not have reduced the risk assessment to level two even if successful:

… [C]ounsel only challenged 35 of the 155 total points assessed against the defendant, and a resulting score of 120 would have still been within the range (between 110 and 300 points) of a presumptive level three (high) offender. Counsel did not seek a downward departure from the defendant’s presumptive risk level designation as a level three sex offender, and the record supports the defendant’s claim that his counsel failed to articulate any argument that would have had any effect on the outcome of the SORA proceeding … . … [T]he record does not demonstrate that counsel made a “strategic decision to attack the assessment of points, while foregoing any request for a downward departure.” Any such strategy in this case “would have made no sense” because it would not have had any effect on the outcome of the SORA proceeding … . Counsel’s failure to make any application for a downward departure, under the particular circumstances of this case, worked to deprive the defendant of his right to zealous advocacy, and amounted to less than meaningful representation … . People v Morancis, 2022 NY Slip Op 00202, Second Dept 1-12-22

 

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