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IN A FORECLOSURE PROCEEDING, THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE MUST BE SENT TO THE BORROWER IN A SEPARATE ENVELOPE; HERE OTHER NOTICES WERE INCLUDED IN THE ENVELOPE ALONG WITH THE RPAPL 1304 NOTICE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, determined, in a foreclosure action, the requirement that the RPAPL 1304 notice be sent to the borrower “in a separate envelope from any other mailing or notice” must be strictly complied. Because other notices were included in the same envelope, the defendant’s motion for summary judgment was properly granted:

… [T]he plaintiff acknowledged that the envelope that it sent to the defendants, which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the rights of a debtor in bankruptcy and in military service. Since the plaintiff failed to establish, prima facie, that it strictly complied with the requirements of RPAPL 1304, the Supreme Court properly denied those branches of its motion which were for summary judgment … . … [O]n his cross motion, [defendant] established his … entitlement to judgment as a matter of law dismissing the complaint … by showing that the plaintiff failed to comply with RPAPL 1304 when it sent additional material in the same envelope as the requisite notice under RPAPL 1304. Bank of Am., N.A. v Kessler, 2021 NY Slip Op 06979, Second Dept 12-15-21

 

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GUIDELINES FOR FUTURE CHILD VICTIMS ACT COMPLAINTS WHERE DEFENDANT MOVES TO STRIKE “SCANDALOUS OR PREJUDICIAL MATTER” (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, laid out guidelines for future pleadings in Child Victims Act (CVA) complaints alleging sexual abuse. The question before the court was how the statute allowing the striking of “scandalous and prejudicial matter” (CPLR 3024(b)) should be applied to CVA complaints. The court ultimately only struck one phrase which referenced “another survivor of [defendant’s] molestation…”. Although the denial of a motion to strike scandalous matter from a pleading is not appealable, the 2nd Department granted leave to appeal:

Based upon the conclusions directly reached here, there are bright lines that should be followed in the future:

— Factual allegations about a plaintiff’s own alleged sexual abuse will not be stricken from the complaint under CPLR 3024(b) as they are central and necessary to giving notice of the transaction or occurrence or series of transactions and occurrences, and the material elements of the cause(s) of action asserted.

— Factual allegations about a defendant’s prior sexually-abusive conduct will not be stricken from the complaint under CPLR 3024(b) where one or more causes of action includes, as a necessary element, what acts or propensities an institutional defendant knew or should have known by the time of the plaintiff’s own abuse.

— Factual allegations about a defendant’s concurrent-in-time sexual abuse of another person will not be stricken from the complaint under CPLR 3024(b) where one or more causes of action includes, as a necessary element, what acts or propensities an institutional defendant knew or should have known by the time of the plaintiff’s own abuse.

— Factual allegations about a defendant’s subsequent relevant statements or conduct that specifically relate back to the sexual abuse of the plaintiff will not be stricken from the complaint under CPLR 3024(b).

— Factual allegations about a defendant’s statements or conduct involving a subsequent sexual abuse survivor, other than the plaintiff, may be stricken from a complaint under CPLR 3024(b) on the ground that they are scandalous or prejudicial and not necessary to the elements of the plaintiff’s specific cause(s) of action. Pisula v Roman Catholic Archdiocese of N.Y., 2021 NY Slip Op 06872, Second Dept 12-8-21

 

THE DEFENSE FOR CAUSE CHALLENGE TO A JUROR WHO SAID SHE WOULD EXPECT THAT THE DEFENSE WOULD PRESENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defense for cause challenge to a juror should have been granted:

“[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Here, the prospective juror’s statements to the effect that she would expect the defense to present evidence raised a serious doubt about her ability to be impartial and her subsequent responses fell short of providing “unequivocal assurances of impartiality” … . People v Feddaoui, 2021 NY Slip Op 06859, Second Dept 12-8-21

 

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DEFENDANT, DURING THE PLEA COLLOQUY, DID NOT ADMIT HE POSSESSED A STOLEN “MOTOR VEHICLE,” AS OPPOSED TO A “MOTOR CYCLE,” AND THE JUDGE DID NOT INQUIRE FURTHER; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL BY A MOTION TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the judge should have inquired further when defendant did not admit he possessed a “motor vehicle,” as opposed to a “motor cycle.” The court noted the issue may be raised on appeal without having moved to withdraw the plea:

As charged here, criminal possession of stolen property in the fourth degree requires possession of “a motor vehicle . . . other than a motorcycle” … . During his plea allocution the defendant admitted to possession of “a motor cycle.” No further inquiry was made by the Supreme Court.

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

Here, as the defendant contends and the People correctly concede, the Supreme Court’s failure to inquire into the validity of the plea after the allocution clearly negated an essential element of the crime requires reversal of the judgment of conviction … . People v Douglas, 2021 NY Slip Op 06857, Second Dept 12-8-21

 

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CUSTODY MATTERS ARE NOT SUBJECT TO ARBITRATION, DESPITE A PROVISION TO THAT EFFECT IN THE STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) despite the stipulation calling for arbitration, custody matters are not subject to arbitration; and (2) upon remittal the court must determine whether New York has jurisdiction and, if so, whether New York is an inconvenient forum. Plaintiff is a citizen of the US and defendant is a citizen of Israel. The parties lived together in New York:

The Supreme Court erred in declining to exercise jurisdiction over the parties’ custody/parental access disputes on the basis that their stipulation of settlement, which was incorporated but not merged into their judgment of divorce, contained an arbitration clause … . “Disputes concerning child custody and visitation are not subject to arbitration as ‘the court’s role as parens patriae must not be usurped'” … .

Moreover, since the Supreme Court has made previous custody determinations concerning the parties’ children, the court, prior to determining whether it has subject matter jurisdiction, must first determine whether the defendant and the children have a significant connection with New York and whether there is substantial evidence in New York … . … If, upon remittal, the court determines … that it retains exclusive, continuing jurisdiction over the custody and parental access issues, it may exercise that jurisdiction, or it may decline to do so if it determines … that New York is an inconvenient forum … . Matsui v Matsui, 2021 NY Slip Op 06843, Second Dept 12-8-21

 

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DEFENDANT PROPERTY OWNER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECTS IN THE CEILING THAT FELL ON PLAINTIFFS; THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE DEFENDANTS DID NOT HAVE EXCLUSIVE CONTROL OVER THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this premises liability case should have been granted. Plaintiffs alleged a portion of their bedroom ceiling collapsed on them. Defendant owner of the property demonstrated the lack of actual or constructive notice of any defect in the ceiling. The res ipsa loquitur doctrine did not apply because the condition was not under defendants’ exclusive control:

The owner of property has a duty to maintain its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that they did not have actual or constructive notice that the bedroom ceiling was in a defective condition … . The evidence submitted by the defendants established that at least one of the plaintiffs had been residing in the third-floor apartment for more than four years, and that prior to the accident, the plaintiffs did not notice any defects in the bedroom ceiling, and had never complained to the defendants about the bedroom ceiling. Moreover, the debris and the ceiling from which it had fallen were dry, and there was no evidence of a leak in the building at or about the time of the accident.

In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the contention of the plaintiffs’ expert, in the absence of a warning about the existence of a latent defect, there was no duty to remove portions of the ceiling plaster to discover what lay behind it … . Additionally, the plaintiffs failed to raise a triable issue of fact as to whether the doctrine of res ipsa loquitur applied to this case since the defendants did not have the requisite exclusive control over the allegedly defective condition … . Matson v Dermer Mgt., Inc., 2021 NY Slip Op 06842, Second Dept 12-8-21

 

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PLAINTIFF WAS DEEMED TO HAVE ASSUMED THE RISK OF PLAYING CRICKET ON A COURT WITH AN OPEN AND OBVIOUS CRACK (SECOND DEPT).

The Second Department determined defendants’ summary judgment motion was properly granted in this slip and fall, assumption of the risk case. Plaintiff alleged he stepped in a hole inside a crack in a tennis court while playing cricket. The crack was deemed open and obvious:

“Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care” … . The defendants’ duty is “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty” … . “This includes risks associated with the construction of the playing surface and any open and obvious condition on it, including less than optimal conditions” . “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . “However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport” … . Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … .

Here, the defendants’ submissions in support of their motion, which included the plaintiff’s deposition testimony and photographs allegedly depicting the accident site, reveal that the crack in the surface of the subject tennis courts, which allegedly caused the plaintiff’s accident, was clearly visible … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the open and obvious crack concealed the depth and extent of the alleged hole … . Maharaj v City of New York, 2021 NY Slip Op 06841, Second Dept 12-8-21

 

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THE COMPUTATIONS IN THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WERE BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the referee’s report should not have been confirmed because computations were based on business records which were not produced:

The Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale because the referee’s computations as to escrow disbursements and advancements and property inspection fees were premised upon unproduced business records … . JPMorgan Chase Bank, N.A. v Bracco, 2021 NY Slip Op 06839, Second Dept 12-8-21

 

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SUPREME COURT SHOULD NOT HAVE ORDERED DEFENDANT TO PAY PLAINTIFF’S ATTORNEY’S FEES AS A SANCTION FOR FRIVOLOUS CONDUCT BECAUSE THE CONDUCT DID NOT OCCUR WITHIN THE PROCEEDINGS BEFORE THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant (Hudes) in this dispute over an easement should not have been sanctioned by ordering him to pay plaintiff’s attorney’s fees for “frivolous conduct.” The facts were not described. The sanction was inappropriate because the behavior which triggered it did not occur within the proceeding before the court:

Courts have discretion to award costs or impose financial sanctions against a party or attorney in a civil action for engaging in frivolous conduct (see 22 NYCRR 130-1.1[a], [b]). Conduct may be deemed frivolous if it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” or “asserts material factual statements that are false”… . However, the scope of the rule is limited to frivolous conduct in the proceeding before the court, and does not extend to “tortious conduct in general” … .

Here, the Supreme Court erred in awarding the plaintiff attorneys’ fees against Hudes personally, since Hudes’ misconduct did not occur within the proceeding before the court and, therefore, was not “frivolous” within the meaning of 22 NYCRR 130-1.1 … . Industry LIC Condominium v Hudes, 2021 NY Slip Op 06836, Second Dept 12-8-21

 

PLAINTIFF WAS NOT ENTITLED TO AN EASEMENT BY IMPLICATION FOR A DRIVEWAY LEADING TO PLAINTIFF’S GARAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment finding an easement by implication for a driveway leading to a garage on plaintiff’s property. The lot with the driveway, Lot B, and plaintiff’s lot, Lot A, were previously owned by the same party who conveyed Lot A to plaintiff and Lot B to defendant, plaintiff’s sister-in-law:

“An easement may be implied from pre-existing use upon severance of title when three elements are shown: ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained'” … . “Stated another way, an implied easement will arise upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate” … . An implied easement must be “a reasonable necessity, rather than a mere convenience” … .

… The plaintiff did not establish that the use of the driveway on Lot B was a reasonable necessity to the beneficial use of the land and not a mere convenience. It is undisputed that Lot A is not landlocked and that the plaintiff can access Lot A without using the driveway on Lot B. … [T]he home situated on Lot A is rented to one set of tenants, and the parking spaces in the garage are rented to another set of tenants. Since access to off-street parking is a mere convenience, the plaintiff cannot establish that the easement is a reasonable necessity. Bonadio v Bonadio, 2021 NY Slip Op 06830, Second Dept 12-8-21

 

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