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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED AND SHOULD NOT HAVE BEEN CONFIRMED; ALTHOUGH DEFENDANTS DEFAULTED, THE REFEREE’S REPORT FUNCTIONS AS AN INQUEST ON DAMAGES WHICH THE DEFENDANTS CAN CONTEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because it was based upon business records that were not produced. The court noted that the fact that defendants had defaulted did not preclude them from contesting the amount owed:

… [T]he referee’s report should not have been confirmed because it was based upon unproduced business records … . The fact that the defendants defaulted in appearing did not mean that they were precluded from contesting the amount owed … . The referee’s report served the function of an inquest on damages, which must be based upon admissible evidence … . Wilmington Sav. Fund Socy., FSB v Moriarty-Gentile, 2021 NY Slip Op 00328, Second Dept 1-20-21

 

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THE AFFIDAVITS SUBMITTED TO PROVE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION WERE NOT BASED UPON PERSONAL KNOWLEDGE AND DID NOT ATTACH THE BUSINESS RECORDS RELIED UPON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank did not submit admissible proof of defendants’ default:

“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon” … . Here, neither Joanne Orelli, a senior vice president of Flushing Bank, who verified the complaint, nor Mark Levin, the managing member of the plaintiff, who submitted an affidavit in support of the motion, stated that they had personal knowledge of the default. Moreover, to the extent their knowledge was based on their review of business records, they did not identify what records they relied on and did not attach them to the verified complaint or the affidavit … . Flatbush Two, LLC v Morales, 2021 NY Slip Op 00294, Second Dept 1-20-21

 

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ALTHOUGH THE VILLAGE CODE MADE THE ABUTTING PROPERTY OWNER RESPONSIBLE FOR MAINTAINING THE SIDEWALK, THE CODE DID NOT IMPOSE TORT LIABILITY ON THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S MOTION TO DISMISS THIS SIDEWALK SLIP AND FALL ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the abutting property owner (Khadu) was not liable in this sidewalk slip and fall case. Although the village code made the abutting property owner responsible for maintenance of the sidewalk, it did not impose tort liability on the property owner:

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous [or] defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” … . “An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty” … .

Here, the evidentiary material submitted by Khadu in support of his motion established as a matter of law that the plaintiffs had no cause of action against him. Khadu demonstrated that he did not create the alleged condition or cause the condition through a special use of the sidewalk. Additionally, although section 180-2 of the Code of the Village of Freeport requires an abutting landowner to keep a sidewalk in good and safe repair, it does not specifically impose tort liability for a breach of that duty … . Daniel v Khadu, 2021 NY Slip Op 00291, Second Dept 1-20-21

 

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BECAUSE THERE WAS NO PROOF WHEN THE STAIRWAY IN THIS SLIP AND FALL CASE WAS CONSTRUCTED, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE BUILDING CODE PROVISION; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendant’s judgment after trial in this slip and fall case, determined the jury should not have been instructed to consider a building code provision because there was not proof when the stairway was constructed:

We agree with the defendant that the Supreme Court should not have charged the jury with regard to certain provisions of the 1925 Administrative Code of the City of New York (hereinafter the Building Code). The plaintiffs failed to submit sufficient proof to establish when the subject stairway was constructed. Thus, the plaintiffs failed to establish which version of the Building Code was applicable … .

Since a general verdict sheet was submitted to the jury, we cannot ascertain whether the jury’s verdict was predicated on a finding that the defendant violated the 1925 Building Code. Accordingly, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for a new trial on the issue of liability. Coreano v 983 Tenants Corp., 2021 NY Slip Op 00290, Second Dept 1-20-21

 

THE CPLR 3215 REQUIREMENT THAT PROCEEDINGS TO TAKE A DEFAULT JUDGMENT BE COMMENCED WITHIN ONE YEAR OF THE DEFAULT APPLIES TO COUNTERCLAIMS; COUNTERCLAIM DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department noted that the CPLR 3215 requirement that proceedings to take a default judgment be taken within one year of the default applies to a counterclaim and held that the counterclaim here must therefore be dismissed as abandoned:

CPLR 3215(c) provides that if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. While counterclaims are not specifically mentioned in CPLR 3215, the statute applies to claims asserted as counterclaims in addition to those set forth in complaints … . “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . “The failure to timely seek a default may be excused if ‘sufficient cause is shown why the complaint should not be dismissed’ (CPLR 3215[c]), which requires the party to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious” … . …

Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and “shall” dismiss the claim pursuant to CPLR 3215(c) … . Bazile v Saleh, 2021 NY Slip Op 00286, Second Dept 1-20-21

 

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

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed because it was based on inadmissible hearsay:

… [T]he affidavit of an assistant vice president of Rushmore Loan Management Services, LLC, 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 he purportedly relied upon in making his calculations” … . Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Accordingly, the Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report … . Wilmington Sav. Fund Socy., FSB v Isom, 2021 NY Slip Op 00203, Second Dept 1-13-21

 

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THE JURY WAS ERRONEOUSLY ALLOWED TO CONSIDER A THEORY OF BURGLARY WITH WHICH DEFENDANT WAS NOT CHARGED; BURGLARY CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s burglary convictions, determined the jury should not have been instructed to consider a theory of burglary (intent to assault versus intent to damage property) with which defendant was not charged:

A defendant has a right to be tried only for the crimes charged in the indictment … . “Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . This rule applies in cases charging burglary, where it is not normally necessary for the People to demonstrate the exact crime which the defendant intended to commit while inside the building … .

Here, we agree with the defendant that the People limited their theory of burglary in their bill of particulars, which incorporated the allegations of the criminal complaint, to the intent to commit property damage and/or theft … . Therefore, the Supreme Court erred in permitting the prosecutor to argue, during summation, and in permitting the jury to consider, the uncharged theory that the defendant intended to assault the complainant … . People v Petersen, 2021 NY Slip Op 00193, Second Dept 1-13-21

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Family Court should have made findings which would allow the children to petition for special immigrant juvenile state (SIJS):

… [B]ased upon our independent factual review, the record supports a finding that reunification of the children with their father is not viable due to the father’s abandonment of the children …., and educational neglect of the child … . Further, the record supports a finding that it would not be in the best interests of the children to return to Guatemala, their previous country of nationality or country of last habitual residence … . Matter of Briceyda M. A. X. (Hugo R. A. O.–Maria H. X. C.), 2021 NY Slip Op 00180, Second Dept 1-13-21

 

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THE EVIDENCE DID NOT SUPPORT FINDING THE APPELLANT IN THIS JUVENILE DELINQUENCY PROCEEDING MADE A TERRORISTIC THREAT IN VIOLATION OF PENAL LAW 490.20; THERE WAS NO EVIDENCE OF AN INTENT TO INTIMIDATE THE CIVILIAN POPULATION (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence in this juvenile delinquency proceeding did not support finding the appellant student made a terroristic threat. The issue was not preserved but the appeal was considered in the interest of justice:

The student testified that one morning during class some of the students were joking and talking when the appellant and another student got into “a little argument,” and the appellant told that student that he “[was] going to be 14 years old, chopped up in somebody’s backyard, and he’s going to get a white person to shoot up the school.” * * *

“Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity” … . “In construing the statute, courts must be cognizant that ‘the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act'” … . As relevant here, Penal Law § 490.20 (1) provides that a person is guilty of making a terroristic threat when “with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.” We agree with the appellant that the presentment agency presented no evidence of an intent by the appellant to intimidate a civilian population with his statements … . Matter of Jaydin R., 2021 NY Slip Op 00176, Second Dept 1-13-21

 

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THE PRIOR APPELLATE DECISION DIRECTING THE COLLECTION OF MORE EVIDENCE IS THE LAW OF THE CASE; THE DIRECTION WAS NOT COMPLIED WITH BY SUPREME COURT UPON REMITTAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the decision in the prior appeal was the law of the case and Supreme Court did not follow the instruction to collect additional evidence:

In our prior decision and order, we noted that the issue of the burden that would be imposed upon the DOE [Department of Education] to comply with the petitioner’s FOIL request and whether the DOE is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and could not be resolved on the record before us … . We noted that “[a]mong other things, it is unclear as to how much time would be involved for an employee at each school to review the relevant files. Further, although the petitioner has expressed its willingness to reimburse the [DOE] for reasonable costs involved in having the [DOE’s] employees, or an appropriate third party, review and copy the [DOE’s] records, there is no information in the record as to what that cost would be or whether the petitioner would in fact be willing to reimburse the [DOE] for the full amount of those costs, once those costs are determined” … . Accordingly, we remitted the matter to the Supreme Court for further proceedings, including additional submissions by the parties … .

Our prior decision and order was law of the case and binding on the Supreme Court … . However, the court failed to conduct further proceedings, including the taking of additional submissions on the issues of burden, cost and reimbursement, in accordance with our decision and order. Accordingly, we reverse the judgment and remit the matter for further proceedings in accordance with our decision and order in Matter of Jewish Press, Inc. v New York City Dept. of Educ. (183 AD3d 731). Matter of Jewish Press, Inc. v New York City Dept. of Educ., 2021 NY Slip Op 00173, Second Dept 1-13-21

 

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