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THE AFFIANT DID NOT DEMONSTRATE PERSONAL KNOWLEDGE OF THE MAILING PROCEDURES AND DID NOT LAY A FOUNDATION FOR THE ATTACHED BUSINESS RECORDS; THEREFORE THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE THE RPAPL 1304 NOTICE WAS PROPERLY MAILED, A CONDITION PRECEDENT FOR FORECLOSURE (SECOND DEPT). ​

The Second Department, reversing the judgment of foreclosure, determined the plaintiff did not prove the mailing of the RPAPL 1304 notice of foreclosure, a condition precedent for foreclosure. The affidavit did not demonstrate the affiant had personal knowledge of the relevant mailing procedures and did not provide an adequate foundation for relevant business records:

… [T]he affidavits submitted in support of Bank of America’s second motion … for summary judgment on the complaint … did not establish the affiants’ personal knowledge of the standard office mailing procedures of LenderLive, the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of Bank of America … . The affidavits also “failed to address the nature of [Bank of America’s] relationship with LenderLive and whether LenderLive’s records were incorporated into [Bank of America’s] own records or routinely relied upon in its business” … . Bank of America thus “failed to lay a foundation for the admission of the transaction report generated by LenderLive” … .. Accordingly, Bank of America failed to establish its strict compliance with RPAPL 1304 … . Therefore, the Supreme Court should have denied those branches of Bank of America’s second motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. U.S. Bank N.A. v Bravo, 2025 NY Slip Op 02953, Second Dept 5-14-25

Same issues and result in Wells Fargo Bank, N.A. v Murray, 2025 NY Slip Op 02960, Second Dept 5-14-25

Practice Point: Any affidavit submitted by the bank in a foreclosure action to prove the mailing of the RPAPL 1304 notice of foreclosure must demonstrate the affiant’s personal knowledge of the mailing procedures and must lay a foundation for the admissibility of any business records relied upon to prove proper mailing.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGED FREQUENCY OF THE ABUSE BY A TEACHER RAISED QUESTIONS OF FACT ABOUT THE SCHOOL DISTRICT’S CONSTRUCTIVE NOTICE OF THE ABUSE AND WHETHER ITS SUPERVISION OF PLAINTIFF STUDENT WAS NEGLIGENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Child Victims Act action alleging the negligent hiring, retention and supervision of a teacher, as well as negligent supervision of plaintiff student, should not have been dismissed. The defendant school district did not eliminate questions of fact about whether it had constructive notice of the abuse based upon the alleged frequency of the abuse:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . Considering, among other things, the frequency of the alleged abuse, which occurred over the course of two school years, inter alia, in a classroom and inside the teacher’s vehicle, the defendants did not eliminate triable issues of fact as to whether they should have known of the alleged abuse … . The defendants also failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Trunco v Eastport- S. Manor Cent. Sch. Dist., 2025 NY Slip Op 02951, Second Dept 5-14-25

Practice Point: In a Child Victims Act action against a teacher, allegations of the frequency and the locations of the abuse of a student may be sufficient to raise questions of fact about whether the school district had constructive notice of the abuse and whether the supervision of the student was negligent.

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR REQUIRED FURTHER INQUIRY BY THE JUDGE; IN THE ABSENCE OF A SUFFICIENT INQUIRY AND THE ELICITATION OF AN UNEQUIVOCAL ASSURANCE OF THE ABILITY TO BE IMPARTIAL, THE DENIAL OF THE CHALLENGE WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined that a for-cause challenge to a juror should have been should have been granted:

… [T]he People provided evidence that the defendant had engaged in a campaign of harassment, intimidation, and embarrassment over a period of more than two years in which he, inter alia, shared nude photographs and sexually explicit videos of the complainant with her family and employers, accessed the complainant’s social media accounts and posted similarly explicit material, and repeatedly called emergency service providers and requested emergency responses to the complainant’s home in Queens. * * *

… [D]uring voir dire, prospective juror No. 16, J. M., acknowledged a prior experience being a defendant in what he characterized as a “frivolous” civil suit. J. M. initally stated that he did not “think” his experience would affect his ability to evaluate the case fairly, and then later affirmed that he could not give his complete assurance that he would be able to put the experience aside. Based on the totality of the record, these statements raised a serious doubt about J. M.’s ability to be impartial. At that point, it was incumbent upon the Supreme Court to conduct a follow-up inquiry to elicit some unequivocal assurance of J. M.’s ability to be impartial or to excuse the prospective juror … . Since the defendant exhausted his peremptory challenges, the denial of his for-cause challenge to J. M. constitutes reversible error … . People v Wilson, 2025 NY Slip Op 02940, Second Dept 5-14-25

Practice Point: If a juror cannot state he or she will be able to evaluate the case fairly, the judge must make an attempt to elicit an unequivocal assurance of the juror’s ability to be impartial. Absent such an unequivocal assurance, the denial of defendant’s for cause challenge is reversible error (where, as here, all of defendant’s peremptory challenges have been exhausted).

 

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ALTHOUGH THE INFORMANT WHO CALLED 911 ABOUT A “MAN WITH A GUN” WAS KNOWN TO THE POLICE AND MAY BE PRESUMED TO BE RELIABLE, THERE WAS NO TESTIMONY AT THE SUPPRESSION HEARING ABOUT THE BASIS FOR THE INFORMANT’S KNOWLEDGE; THEREFORE THE PEOPLE DID NOT PROVE THE POLICE HAD REASONABLE SUSPICION TO STOP THE DEFENDANT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the suppression motion should have been granted. Although the informant who made the 911 call was known to the police, there was no testimony at the suppression hearing about the basis of the informant’s knowledge. The stop of defendant’s vehicle for failure to use a turn signal did not justify removing defendant from the vehicle and handcuffing him:

When the People seek to rely on information provided by an informant to establish the reasonable suspicion necessary to justify a vehicle stop, “‘it [is] essential that at least some showing be made of the basis of the informant’s knowledge'” … . Where there is no testimony demonstrating how the informant knew the defendant was engaged in illegality, such as the possession of a weapon, reasonable suspicion cannot be found … .

… Neither the sergeant nor the officer testified as to how the informant, who had called the 911 emergency number, knew that the defendant had a gun. Therefore, the People failed to demonstrate that the information provided by the informant constituted “more than unsubstantiated rumor, unfounded accusation or conclusory characterization” … .

In the absence of the People eliciting testimony at the suppression hearing that sufficiently explained how the informant knew the defendant was in possession of a weapon, the County Court erred in concluding that the officers had reasonable suspicion to stop the defendant … . Moreover, while the informant did identify the defendant from across the street, this identification occurred well after the defendant had been stopped and detained by the officers. “‘Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion'” … .

… [W]hile the informant, who was known to the responding officers, may be presumed to be reliable, the basis of his knowledge was not sufficiently established at the suppression hearing. People v Thomison, 2025 NY Slip Op 02938, Second Dept 5-14-25

Practice Point: At a suppression hearing, the People have the burden to prove the legality of the police conduct. Where an informant known to the police calls 911 to report a “man with a gun,” the reliability of the informant may be presumed. But the People must still prove the basis for the informant’s knowledge. Where, as here, there is no testimony demonstrating how the informant learned about the “man with a gun,” the People have not met their burden of proof.

 

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IN THIS STREET-STOP-FRISK CASE, THE POLICE OFFICER TESTIFIED HE SAW DEFENDANT PUT A BLACK OBJECT IN HIS JACKET POCKET, BUT HE DID NOT TESTIFY HE HAD A REASONABLE SUSPICION THE OBJECT WAS A FIREARM; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP AND FRISK; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECON DEPT).

The Second Department, reversing Supreme Court’s denial of the suppression motion in this street-stop case, determined the police officer, Espinal, did not have a reasonable suspicion that the object defendant put in his pocket was a firearm. Therefore the officer did not have a sufficient reason to grab defendant’s pocket:

While driving down 193rd Street toward a dead end, Detective Espinal spotted a vehicle illegally parked in the middle of the dead end’s cul-de-sac. Detective Espinal testified that there appeared to be an individual in the driver’s seat and another individual standing outside the vehicle by the driver’s window. Detective Espinal observed that the individual standing outside the vehicle, who was later identified as the defendant, was holding a black object in his right hand, although Detective Espinal could not identify the object. Detective Espinal testified that when the defendant made eye contact with him, the defendant put the object into the right front pocket of the jacket that he was wearing and proceeded to walk toward the police vehicle with his hands in his jacket pockets. As the defendant continued to walk toward the police vehicle, Detective Espinal exited the vehicle and directed the defendant to take his hands out of his jacket pockets and put his hands up. Although the defendant initially complied, as Detective Espinal got closer, the defendant began to reach down toward his right jacket pocket. Upon seeing the defendant reach for his jacket pocket, Detective Espinal grabbed the pocket and felt a firearm inside. Detective Espinal withdrew a firearm from the defendant’s pocket and instructed one of his partners to place the defendant under arrest. * * *

… Detective Espinal did not have the required reasonable suspicion to frisk the defendant. Detective Espinal’s testimony is clear. He saw the defendant outside the illegally parked vehicle and watched as the defendant placed a black object in his jacket pocket. Detective Espinal did not testify as to what he thought the object was or whether he had any reasonable suspicion to believe that the object was a weapon of any kind, let alone a firearm. The only instance of illegality that Detective Espinal testified to was the illegally parked vehicle, which would not have provided the officers with a basis to frisk the defendant … . People v Taylor, 2025 NY Slip Op 02937, Second Dept 5-14-25

Practice Point: The People have the burden of demonstrating the legality of the police conduct in a stop and frisk. Here the officer testified he saw defendant put a black object in his pocket, but he did not testify he suspected the object was a firearm. The fact that the incident took place in a high-crime area was not enough to provide reasonable suspicion sufficient for a stop and frisk.​

 

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THE INITIAL JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE WAS INCORRECT; ALTHOUGH THE CORRECT INSTRUCTION WAS SUBSEQUENTLY GIVEN, THE INCORRECT INSTRUCTION WAS NEVER WITHDRAWN; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s convictions on several counts and ordering a new trial, determined that the judge committed reversible error by not withdrawing the original erroneous justification jury instruction. Subsequently giving the correct jury instruction without withdrawing the initial incorrect jury instruction requires reversal:

Supreme Court’s initial jury instruction charging the justified use of ordinary physical force was erroneous under the circumstances. As the People acknowledge on appeal, the only possible justification defense available to the defendant based on the evidence presented at trial would have been a charge of justified use of deadly physical force (Penal Law § 35.15[2] …). Although the court eventually furnished a proper charge on the justified use of deadly physical force to the deliberating jury, it did not withdraw its previous justification instruction, thereby leaving the jury with competing charges on a material issue. Under these circumstances, it is not possible to conclude that the jury rendered its verdict with a complete and accurate understanding of the applicable law. “Inasmuch as it is impossible to determine the basis for the jury’s verdict, there must be a reversal” … . People v Cherry, 2025 NY Slip Op 02930, Second Dept 5-14-25

Practice Point: If a judge gives an incorrect jury instruction, it is not sufficient to subsequently give the correct instruction. The erroneous instruction must be explicitly withdrawn.

 

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THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff slipped and fell because of the condition of the floor, and not because of the actions of an animal, a cow which plaintiff was walking back to her stall when both he and the cow fell:

The plaintiff, who was working as a farrier, went to the defendant Bobby Wickham’s farm to service his cows. The cement area that the plaintiff had to traverse to transport each cow to and from her stall allegedly was covered with feces and urine. When the plaintiff complained to Wickham that the floor was very slippery, Wickham allegedly stated that he did not have sand to put down on the ground. The plaintiff serviced six or seven cows without incident. While he was working, the plaintiff saw cows slip on the floor. After servicing the cow at issue, the plaintiff was walking the cow back to her stall when he slipped and fell on the floor. The cow then fell on top of the plaintiff’s right foot.

… Wickham moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the sole means of recovery of damages for injuries caused by a domestic animal was upon a theory of strict liability, whereby the plaintiff must establish that the domestic animal had vicious propensities and that the owner knew or should have known of the domestic animal’s vicious propensities, which the plaintiff did not allege here. …

* * * The evidence submitted raised triable issues of fact as to whether the plaintiff allegedly slipped and fell due to the condition of the floor and whether the cow’s subsequent contact with the plaintiff was causally related to the condition of the floor. Gomez v Wickham, 2025 NY Slip Op 02760, Second Dept 5-7-25

Practice Point: Just because a plaintiff’s injuries are caused by an animal, here a cow falling on plaintiff, does not require that plaintiff’s lawsuit be brought under animal law (strict liability based on the animal’s vicious propensities). Plaintiff successfully alleged, under a negligence theory, that both he and the cow fell because of the slippery condition of the floor.

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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A PROPER FOUNDATION WAS NOT PROVIDED FOR THE ADMISSIBILITY OF SOME BUSINESS RECORDS RELIED ON BY THE REFEREE IN THIS FORECLOSURE ACTION; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to confirm the referee’s report in this foreclosure action should have been denied. A proper foundation had not been provided for the admissibility of some of the business records relied upon by the referee:

Generally, the report of a referee should be confirmed whenever the findings are substantially supported by the record … . Here, the referee computed the amount due to the plaintiff based upon the affidavit of an employee of the plaintiff and certain business records. Although the affiant purported to have personal knowledge of the amounts due and owing on the loan, she averred that this was based upon her review of the plaintiff’s records. “[A] review of records maintained in the normal course of business does not vest an affiant with personal knowledge” … . The affiant also failed to establish a proper foundation for the admission of all of the business records relied upon (see CPLR 4518[a]). “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the referee’s findings with respect to the total amount due on the note were premised upon a payment history beginning in 2009. The plaintiff, however, did not acquire the note until 2013. The plaintiff’s affiant failed to establish a proper foundation for the admission of the records from 2009 to 2013 … , and, therefore, the referee’s report was not substantially supported by the record. Nationstar Mtge., LLC v Lewis, 2025 NY Slip Op 02789, Second Dept 5-7-25

Practice Point: Reversals in foreclosure proceedings often stem from the failure to provide a proper foundation for the admissibility of business records relied upon by the parties and/or the referee.​

 

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THE EIGHT-AND-A-HALF-MONTH DELAY BETWEEN THE JUVENILE’S ARREST AND THE FILING OF THE JUVENILE DELINQUENCY PETITION DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW (SECOND DEPT).

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the juvenile, Adonis J W, was deprived of his constitutional right to due process by the eight-and-a-half-month delay between his arrest and the filing of the petition:

“The due process right to a speedy trial extends to respondents in juvenile delinquency proceedings” … . “An unreasonable delay in prosecuting a juvenile delinquency proceeding following a respondent’s arrest can constitute a violation of due process” … . “To determine whether a respondent’s due process rights were violated by a delay in filing, the court must engage in a balancing of factors, including the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication of prejudice to the defense resulting from the delay” … . “When applying this balancing test, ‘courts must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings'” … . “‘[T]he central goal of any juvenile proceeding—rehabilitation of the juvenile through prompt intervention and treatment—can seem trivialized when a presentment agency delays the filing of a petition'” … .

Here, while the charges were serious and Adonis J. W. did not demonstrate any actual prejudice to his defense attributable to the delay in filing the petition, the presentment agency failed to establish a legitimate reason for the delay. Additionally, the ultimate goal of promptly treating and rehabilitating Adonis J. W. was not furthered by permitting a fact-finding hearing on the petition following the unjustified delay. Matter of Adonis J. W., 2025 NY Slip Op 02788, Second Dept 5-7-25

Practice Point: The constitutional speedy trial rights apply to juvenile delinquency proceedings.

 

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