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PLAINTIFF ALLEGED HE WAS STRUCK BY A BRICK WHICH RICOCHETED OUT OF A CHUTE USED FOR DUMPING DEBRIS FROM THE UPPER FLOORS OF A BUILDING UNDERGOING DEMOLITION; THE CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant general contractor’s motion for summary judgment on the Labor Law 240(1) and 241(6) causes of action should not have been granted. During the demolition of a building plaintiff (allegedly) was struck by a brick which ricocheted out of a chute used for dumping debris from the upper floors:

The debris that was being removed from the building was thrown down the elevator chute, and the plaintiff’s injuries were caused by materials which descended from a higher floor and ricocheted out of the chute into the area where the plaintiff was working. The protections of Labor Law § 240(1) are implicated because the plaintiff’s injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ other safety devices for the removal of the debris, which might have provided the necessary protection … . …

In support of that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, [the contractor] failed to demonstrate, prima facie, that 12 NYCRR 23-1.7(a)(1), 23-1.20(a), 23-2.5(a), and 23-3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff’s alleged injuries … . Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC, 2021 NY Slip Op 05600, Second Dept 10-13-21

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS RESPONSIBLE FOR INTIMIDATING WITNESSES SUCH THAT OUT-OF-COURT STATEMENTS BY THOSE WITNESSES WERE ADMISSIBLE; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO EXERCISE PEREMPTORY CHALLENGES TO JURORS ALREADY ACCEPTED BY THE DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined (1) the People did not demonstrate the defendant was responsible for the intimidation of witnesses by others; and (2), the People should not have been allowed to exercise peremptory challenges to jurors after those jurors had been accepted by the defense:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

… [T]he People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … . …

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 05580, Second Dept 10-13-21

 

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THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to suppress should have been granted in this street stop case. The police officers’ observations of defendant, pursuant to the DeBour criteria, did not justify approaching him and asking whether a bag on the counter in a store belonged to him. There was a gun in the bag:

At the suppression hearing, one of the officers testified that as his vehicle was approaching a red traffic signal at the intersection, the defendant “tensed up” or “stiffened up” and, after making eye contact with the officer through the front windshield, the defendant’s “eyes widened” and the defendant walked into the corner store. The officer continued to observe the defendant through the store’s window, but did not have a full view of him. The officer saw the defendant do “a little pacing back and forth” and then come back outside. When the traffic signal turned green, the officer and his partner pulled over and exited their vehicle. * * *

… [T]he officer who testified at the suppression hearing failed to articulate any reason for approaching the defendant, other than that he appeared nervous and the officer wanted to “see why he went into the store.” This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information … .

… [E]ven assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store … . People v Brown, 2021 NY Slip Op 05579, Second Dept 10-13-21

 

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THE PARENTS’ INCOME WAS NOT PROPERLY CALCULATED FOR CHILD-SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ income was not properly calculated for child-support purposes:

The Child Support Standards Act (hereinafter CSSA) “sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment … . …

A calculation of “the basic child support obligation for the children, . . . is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage” … . “[A] court has broad discretion to impute income when determining the amount of child support, and is not bound by the parties’ representations of their finances”… . The court may impute income to a party “based on the [party’s] employment history, future earning capacity, educational background” … , “resources available to the party, including ‘money, goods, or services provided by relatives and friends'” … , or “when it is shown that the marital lifestyle was such that, under the circumstances, there [is] a basis for the court to conclude that the [party’s] actual income and financial resources were greater than what he or she reported on his or her tax return[ ]” … .

Here, the Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years … . Furthermore, under the circumstances of this case, where the plaintiff is employed by his family and his tax returns show substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. Koutsouras v Mitsos-Koutsouras, 2021 NY Slip Op 05328, Second Dept 10-7-21

 

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PLAINTIFF AND HIS ATTORNEY SENT 75 LETTERS TO HARASS DEFENDANTS; SANCTIONS FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN IMPOSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should have been sanctioned for harassing defendants:

In 2015, the plaintiff commenced this shareholder’s derivative action. After the action was commenced, the plaintiff and his attorney sent approximately 75 letters to various defendants, as well as those defendants’ family members, clergy, and attorneys. Therein, the plaintiff made disturbing references, among other things, to plagues, repentance, imprisonment, and punishment by the Internal Revenue Service for tax fraud. …

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct is “frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]). “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of proof” … .

… [T]he defendants established that the plaintiff’s conduct in sending the subject letters was calculated to harass the defendants … . Glaubach v Slifkin, 2021 NY Slip Op 05323, Second Dept 10-7-21

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate standing to bring the action. Therefore the lack-of-standing affirmative defense should not have been struck:

… [A] plaintiff may demonstrate its standing in a foreclosure action through evidence that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of the commencement of the action (see UCC 3-202[2] …).

… The plaintiff attempted to demonstrate that it was the holder of the underlying note by attaching to the complaint a copy of the note with an allonge. The purported allonge contains an endorsement in blank, has no pagination, is undated, and contains no writing in any way to demonstrate its connection to the note or that it was firmly affixed thereto. An affirmation of the plaintiff’s counsel and an affidavit of a representative of the plaintiff’s loan servicer, submitted in support of the plaintiff’s motion, also failed to indicate that the purported allonge is connected to the note or that it was firmly affixed thereto. Therefore, the plaintiff failed to establish that the purported allonge was so firmly attached to the note as to become a part thereof, and thus failed to establish, prima facie, its standing to commence this foreclosure action … . Federal Natl. Mtge. Assn. v Hollien, 2021 NY Slip Op 05321, Second Dept 10-7-21

 

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THE PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE IN THIS FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT 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. Plaintiff did not demonstrate compliance with the notice requirements in the mortgage:

… Supreme Court improperly determined that the plaintiff established, prima facie, that it complied with the notice requirement of paragraph 22 of the mortgage. Statements in Johnson’s [plaintiff’s vice president’s] affidavit, “‘which asserted that the notice of default was sent in accordance with the terms of the mortgage, [were] unsubstantiated and conclusory and . . . , even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage'” … . Johnson did not purport to have personal knowledge of the mailing of the default notice or any familiarity with the plaintiff’s mailing practices … . Ditech Fin., LLC v Naidu, 2021 NY Slip Op 05320, Second Dept 10-7-21

 

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SUPREME COURT ERRONEOUSLY PRECLUDED PLAINTIFF’S TREATING PHYSICIAN’S TESTIMONY AND THE ADMISSION OF MEDICAL RECORDS IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. The trial court had erroneously precluded some of the testimony of one of plaintiff’s treating physicians and the admission of another treating physician’s medical records. The defendant had waived any objection to the records by failing to object after service of plaintiff’s notice of intention to enter the documents:

At the trial on the issue of damages, the plaintiff called one of her treating physicians, Irving Friedman, as a witness. The Supreme Court erred in granting the defendant’s application to preclude Friedman’s testimony concerning the cervical and thoracic regions of the plaintiff’s spine based upon a conceded error Friedman made wherein he misidentified the MRI of the plaintiff’s spine … . Under the circumstances of this case, any defects in Friedman’s opinions or the foundations on which those opinions are based “should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” … .

In addition, the Supreme Court erred in precluding Friedman’s testimony regarding future treatment and possible need for future surgery, as Friedman had addressed these issues in his medical reports … .

… [T]he Supreme Court erred in precluding the admission of the medical records of another of the plaintiff’s treating physicians, Rubin Ingber, under the business records exception to the hearsay rule. The defendant waived his right to any objection to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff’s notice of her intention to enter the documents into evidence pursuant to CPLR 3122- … . Benguigui v Racer, 2021 NY Slip Op 05318, Second Dept 10-6-21

 

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THE PURCHASERS BREACHED THE CONTRACT OF SALE BY INFORMING THE SELLER THEY WOULD NOT ATTEND THE “TIME OF THE ESSENCE” CLOSING; THEREFORE THE PURCHASERS ARE ENTITLED TO RETURN OF THEIR DEPOSIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the seller did not breach the contract for sale and the purchasers breached the contract by stating in a letter they would not attend the “time of the essence” closing. Therefore the purchasers were entitled to the return of their deposit:

The Supreme Court erred in determining that the purchasers were entitled to a return of their down payment because the seller breached the contract by failing to “close on the property free of violations.” Instead, the purchasers never placed the seller in default. * * *

… [A]s the purchasers advised by letter prior to the “time of the essence” closing that they would not appear at the closing, they breached the contract and forfeited their down payment, without the necessity of a tender on the part of the seller … . Xelo v Hamilton, 2021 NY Slip Op 05364, Second Dept 10-6-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE PLAINTIFF’S FAILURE TO INCLUDE DEFENDANT IN THE ORIGINAL FORECLOSURE PROCEEDING WAS THE RESULT OF “WILFUL NEGLECT;” THEREFORE, PURSUANT TO RPAPL 1523, DEFENDANT’S “WILFUL-NEGLECT” AFFIRMATIVE DEFENSE IN THIS REFORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s affirmative defense to the reforeclosure should not have been dismissed. Plaintiff had not named defendant in its original foreclosure action, apparently because a quitclaim deed adding defendant to the title was not discovered in the title search. Defendant demonstrated there had been a prior foreclosure action in which defendant had been named as a party. Therefore, there was a question of fact whether the failure to name defendant in the original foreclosure action was the result of “wilful neglect:”

To prevail in a reforeclosure action, the plaintiff must demonstrate that the defect in the original foreclosure action “was not due to fraud or wilful neglect of the plaintiff and that the defendant or the person under whom he claims was not actually prejudiced thereby” (RPAPL 1523[2] [emphasis added]).

Pursuant to the language of RPAPL 1523 … the plaintiff had the burden of demonstrating … both that the defect in the underlying foreclosure action was not the result of fraud or the wilful neglect of the foreclosure plaintiff, and that the defect did not prejudice the defendant (see RPAPL 1523[1], [2]). * * *

Contrary to the plaintiff’s contention, the evidence of the prior foreclosure action in which the defendant was named as a party raised a triable issue of fact as to whether the plaintiff’s failure to name her as a defendant in the underlying foreclosure action was the result of “wilful neglect” (RPAPL 1523[2] …). U.S. Bank N.A. v Lomuto, 2021 NY Slip Op 05363, Second Dept 10-6-21

 

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