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THE INSTANT FORECLOSURE ACTION WAS PRECLUDED BY A PRIOR FORECLOSURE ACTION WHICH HAD NOT BEEN DISCONTINUED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the instant foreclosure action was precluded by a prior action which had not been discontinued:

In May 2014, JPMorgan commenced an action to foreclose the consolidated mortgage (hereinafter the prior action). In August 2014, JPMorgan assigned the consolidated mortgage to Bayview Loan Servicing, LLC (hereinafter the plaintiff). In August 2016, the plaintiff commenced this action to foreclose the subject mortgage. …

RPAPL 1301(3) provides that “[w]hile [an] action is pending . . . , no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.” “The object of the statute is to shield the mortgagor from the expense and annoyance of two independent actions at the same time with reference to the same debt” … . Here, since the plaintiff commenced the instant action without leave of the court in which the prior action was brought, and there is no basis in the record to determine that JPMorgan discontinued or effectively abandoned the prior action, dismissal is warranted under RPAPL 1301(3) … . Bayview Loan Servicing, LLC v Starr-Klein, 2021 NY Slip Op 02269, Second Dept 4-14-21

 

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A PROPER FOUNDATION FOR THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WAS NOT LAID; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not law a proper foundation for the business records required to demonstrate standing to bring the foreclosure action:

… [T]he plaintiff submitted … the affidavit of Kathleen Manly, an assistant vice present of Residential Credit Solutions, Inc. … , the plaintiff’s loan servicer. While Manly averred … that she was familiar with Residential’s records and record-keeping practices, and that she had reviewed the records of the prior loan servicer, Bank of America, N.A. … , she did not state that she was familiar with the records or record-keeping practices of Bank of America or that Bank of America’s records were incorporated into Residential’s records and routinely relied upon by Residential in its own business. Thus, she failed to lay a foundation for the admissibility of the records she relied upon to support her claim that the plaintiff possessed the original note prior to the commencement of this action … . Bank of N.Y. Mellon v Penso, 2021 NY Slip Op 02268, Second Dept 4-14-21

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON INADMISSIBLE HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the report was based upon inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . Here, the affidavit of an employee of the plaintiff’s loan servicer, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records she purportedly relied upon in making her calculations … . Under the circumstances, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Bank of N.Y. Mellon v Davis, 2021 NY Slip Op 02267, Second Dept 4-14-21

 

THE PLAINTIFFS WERE ENTITLED TO A DECLARATORY JUDGMENT TO THE EFFECT THE VILLAGE WAS REQUIRED TO REPAIR A BULKHEAD/STORM DRAIN WHICH RAN THROUGH AN EASEMENT ON PLAINTIFFS’ PROPERTY; THE WOODEN BULKHEAD WHICH CRADLED THE DRAIN PIPE HAD DETERIORATED CAUSING SINK HOLES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs were entitled to a declaratory judgment to the effect that the village was required to repair the bulkhead/storm drain pipe that ran through plaintiffs’ property pursuant to an easement. The drain pipe was encased in a wooden bulkhead which had deteriorated, causing sink holes on plaintiffs’ property. The village had refused to repair the bulkhead, claiming it was responsible only for maintenance of the drain pipe:

In 1961, the plaintiffs’ predecessors, who were the parents of the plaintiff June Anson, granted the Village a perpetual easement over a portion of their property, approximately 65 feet long and 10 feet wide, “to construct and maintain one underground storm water drain and one tide gate accessory thereto.” In the easement agreement, the Village was also granted the right and privilege “to do whatever acts [we]re necessary and proper” in the easement premises for maintaining and operating the storm water drain and tide gate. The easement agreement did not assign any responsibility for maintenance of the easement premises to the property owners. * * *

The plaintiffs’ evidence demonstrated, prima facie, that the bulkhead was an integral part of the storm water drainage system currently maintained by the Village on the easement premises. Inasmuch as the easement agreement did not place affirmative responsibility for maintenance of those premises upon the owners of the servient estate, it was the Village’s obligation to maintain the bulkhead … . … [T]he plaintiffs were entitled to a judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition, and an injunction requiring the Village to do so. Anson v Incorporated Vil. of Freeport, 2021 NY Slip Op 02266, Second Dept 4-14-21

 

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THE BEST EVIDENCE RULE AND THE DEAD MAN’S STATUTE PRECLUDED PLAINTIFF FROM PROVING HIS CASE, WHICH WAS BASED UPON A CONTRACT AND DECEDENT’S STATEMENTS ABOUT THE CONTRACT; ALTHOUGH THE DEAD MAN’S STATUTE USUALLY WILL NOT PRECLUDE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, HERE IT IS CLEAR PLAINTIFF WILL NOT BE ABLE TO PROVE HIS CASE AT TRIAL (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this action based upon a contract between plaintiff and decedent was properly granted. The alleged copy of the contract was inadmissible pursuant to the best evidence rule, and any testimony about what the decedent said about the contract was prohibited by the Dead Man’s statute:

… [T]he plaintiff failed to adequately explain the unavailability of the original executed joint development agreement … . Moreover, even if the plaintiff met his threshold burden of explaining the unavailability of the original joint development agreement, he failed to establish that the copy was a reliable and accurate portrayal of the original … . The plaintiff’s proffered testimony that the copy was an exact copy of the original joint development agreement could not be offered at trial, as it was precluded by the application of the Dead Man’s Statute (see CPLR 4519 …). …

“New York’s Dead Man’s Statute by its terms makes testimony by an interested witness ‘concerning a personal transaction or communication between the witness and the deceased’ excludable only ‘[u]pon the trial of an action or the hearing upon the merits of a special proceeding'” … .Generally, “[e]vidence, otherwise relevant and competent upon a trial or hearing, but subject to exclusion on objection under the Dead Man’s Statute, should not predetermine the result on summary judgment in anticipation of the objection”… . Thus, evidence excludable at trial under CPLR 4519 may be considered in opposition to a motion for summary judgment … . However, a trial is unnecessary if it is certain that there would be no waiver of the statute and that all of the proof would be excludable … . Where, as here, the sole evidence proffered by the opposing party is barred by the Dead Man’s Statute, an award of summary judgment is appropriate … . Stathis v Estate of Donald Karas, 2021 NY Slip Op 02330, Second Dept 4-14-21

 

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THE ASSAULT ON PLAINTIFF STUDENT BY ANOTHER STUDENT HAPPENED IN SO SHORT A TIME IT COULD NOT HAVE BEEN PREVENTED BY SCHOOL PERSONNEL; THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should have been granted in this student on student third-party assault case:

… [T]he infant plaintiff, who was then a fourth-grade elementary school student, was standing outside with his friends during a lunch recess when a fellow student ran up to him from behind and pushed him, causing him to fall. …

… [T]he defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that its alleged negligence in supervising the infant plaintiff was not a proximate cause of the infant plaintiff’s injuries … . The incident occurred in such a short span of time that the most intense supervision could not have prevented it. I.S. v Hempstead Union Free Sch. Dist., 2021 NY Slip Op 02329, Second Dept 4-14-21

 

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THE EVIDENCE THAT DEFENDANT WAS AN ACCOMPLICE IN A DRUG SALE AND WAS PART OF A CONSPIRACY TO SELL DRUGS WAS LEGALLY INSUFFICIENT; MERE PRESENCE IS NOT ENOUGH FOR ACCOMPLICE LIABILITY AND THERE WAS NO PROOF OF AN OVERT ACT RELEVANT TO DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s convictions of criminal sale of a controlled substance, on an accomplice theory, and conspiracy, based on mere presence. Defendant was in the car with Alvarado, who sold heroin to an undercover officer who briefly got into the car, purchased the drugs, and left. The evidence defendant acted as an accomplice and was part of a conspiracy was deemed legally insufficient and against the weight of the evidence:

… [T]he evidence reflects that the defendant met Alvarado on April 25, 2015, to accompany Alvarado to the driving school before Alvarado and the undercover officer arranged the meeting, and that Alvarado told the undercover officer prior to the meeting that he had to “do this thing for my license.” Thus, the defendant’s mere presence during the sale, with knowledge of what was transpiring at that time, was insufficient to establish the defendant’s guilt of criminal sale of a controlled substance in the third degree … . …

… [T]he evidence was legally insufficient to establish that the defendant entered into an agreement with Alvarado to sell heroin on April 25, 2015, since there was no evidence that the defendant participated in arranging the heroin sale or even had any discussion with Alvarado about selling heroin on that date … . Further, the People failed to present any evidence of an “overt act” connected to any statements made during the wiretapped calls between the defendant and Alvarado. Accordingly, the evidence was legally insufficient to establish the defendant’s guilt of conspiracy in the fourth degree beyond a reasonable doubt. People v Moreno, 2021 NY Slip Op 02316, Second Dept 4-14-21

 

CONSECUTIVE SENTENCES FOR CRIMINAL SALE OF A CONTROLLED SUBSTANCE AND CONSPIRACY WERE PROPER, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT). ​

The Second Department determined defendant was properly given consecutive sentences for criminal sale of a controlled substance and conspiracy:

Penal Law § 70.25(2) provides: “When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently” … .

“[T]he commission of one offense is a material element of a second for restrictive sentencing purposes if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense” … . Conspiracy in the second degree has two elements, (1) an agreement with one or more persons to engage in or cause the performance of conduct constituting a class A felony … , and (2) “an overt act . . . committed by one of the conspirators in furtherance of the conspiracy” … . While criminal sale of a controlled substance in the second degree is a Class A-II felony … , it is one of many Class A felonies contained in the Penal Law, and conspiracy in the second degree requires only the agreement to engage in conduct constituting a Class A felony, not the commission of such conduct. Furthermore, while “[t]he overt act must be an independent act that tends to carry out the conspiracy, [it] need not necessarily be the object of the crime” … . Thus, criminal sale of a controlled substance in the second degree … is not a material element of conspiracy in the second degree … .

Moreover, the acts underlying the crimes committed by the defendant were separate and distinct … . Crimes are separate when commission of one crime is complete at the time that the intent is formed to commit the second crime, even if the first crime is an element of the second crime … . The fundamental question is not whether the same criminal intent inspired the whole transaction, but whether separate acts have been committed with the requisite criminal intent … . People v Blue, 2021 NY Slip Op 02305, Second Dept 4-14-21

 

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THE ANONYMOUS TIP THAT A MAN WITH A GUN WAS LEAVING A CLUB DID NOT PROVIDE THE POLICE WITH SUFFICIENT INFORMATION FOR STOPPING AND DETAINING THE DEFENDANT WHO SUBSEQUENTLY RAN, PULLED OUT A HANDGUN AND WAS SHOT BY THE POLICE; DEFENDANT’S MOTION TO SUPPRESS THE HANDGUN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion, determined the police, action on an anonymous tip, did not have sufficient information to stop and detain the defendant. The defendant ran, pulled out a handgun, and was shot by the police. The defendant moved to suppress the handgun. The Second Department noted that the theories supporting the initial stop of the defendant where not raised or ruled upon below and therefore could not be considered on appeal:

… [T]he Supreme Court erred in finding, in effect, that the police had lawfully stopped the defendant before the defendant fled from the police and removed a gun from his waist. The hearing testimony indicated that the law enforcement officials who were in the sergeant’s vehicle had received a tip that two individuals, one of whom had a gun, were leaving the club. There was no evidence presented at the hearing as to the identity of the individual who provided the tip, no evidence that the informant explained to the police how he or she knew about the gun, no evidence that the informant supplied any basis to believe that he or she had inside information about the defendant, and no evidence that the informant had “‘knowledge of concealed criminal activity'” … . Therefore, the police lacked reasonable suspicion to stop the defendant and his companion based solely on the tip. People v Benbow, 2021 NY Slip Op 02304, Second Dept 4-14-21

 

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THE MEDICAL CENTER WAS ENTITLED TO THE NO-FAULT INSURANCE BENEFITS ASSIGNED TO IT BY THE PEDESTRIAN INJURED BY PLAINTIFF’S TAXI; THE FACT THAT THE PEDESTRIAN HAD SETTLED HIS ACTION AGAINST THE PLAINTIFF TAXI COMPANY DID NOT HAVE ANY BEARING ON THE PLAINTIFF’S OBLIGATION TO PAY THE NO-FAULT BENEFITS TO THE MEDICAL CENTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant medical center was entitled to the no-fault benefits assigned to it by the pedestrian injured by plaintiff’s taxi in this traffic accident case. The fact that the pedestrian had settled his action against the plaintiff taxi company had no bearing on the assignment of the no-fault benefits to the medical center:

“[A]n account debtor is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and that payment is to be made to the assignee ” … . To establish that it did not receive notice of the assignment, the plaintiff relies solely on an affidavit of an employee of the plaintiff’s claims administrator, who asserted that the claims administrator never received the faxed notice on July 11, 2011. The employee’s assertion, however, was belied by overwhelming documentary evidence. Indeed, a denial of claim form dated July 20, 2011, which was prepared by the plaintiff’s claims administrator and attached to the employee’s affidavit, designated the defendant as the assignee. In addition, the defendant submitted an arbitration decision dated January 3, 2012, in which [the pedestrian’s] arbitration claim against the plaintiff for no-fault benefits was dismissed on the ground that he lacked standing because he assigned the claims for no-fault benefits. Under these circumstances, the plaintiff failed to raise a triable issue of fact as to whether it received notice of the assignment. Murzik Taxi, Inc. v Lutheran Med. Ctr., 2021 NY Slip Op 02302, Second Dept 4-14-21

 

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