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DEFENDANTS MOVED TO DISQUALIFY PLAINTIFF, AN ATTORNEY AND PHYSICIAN REPRESENTING HIMSELF IN THIS FRAUD AND BREACH OF CONTRACT ACTION, ARGUING PLAINTIFF MAY BE CALLED AS A WITNESS; THE DEFENDANTS DID NOT SPECIFY HOW PLAINTIFF’S TESTIMONY WOULD BE NECESSARY TO THE DEFENSE; THE MOTION TO DISQUALIFY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to disqualify plaintiff Colantonio, an attorney and physician representing himself, should not have been granted. Plaintiffs brought a fraud an breach of contract action arising from the lease/purchase of a liposuction laser unit. Defendants moved to disqualify arguing Colantonio may be called as a witness:

“In order to disqualify counsel on the ground that he or she may be called as a witness, the party moving for disqualification has the burden of demonstrating that ‘(1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party'” … . In turn, “[a] finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … .

… [T]he defendants each failed to make the requisite showing that Colantonio should be disqualified as counsel for Empire Medical and Cestari. The defendants failed to specify the facts about which they expect Colantonio to testify or to establish how such testimony would be necessary to their defense … . They also failed to allege that Colantonio’s testimony would be prejudicial to plaintiffs Cestari or Empire Medical … . Indeed, Colantonio and Cestari both attested to the opposite. At this early stage in the litigation, discovery has not established the substance and necessity of Colantonio’s testimony in the action … . Moreover, in opposition to the motions, plaintiff Cestari averred that disqualification of Colantonio would cause a substantial hardship on him, which constitutes an exception to the rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) advocate-witness disqualification … . Empire Med. Servs. of Long Is., P.C. v Sharma, 2020 NY Slip Op 07545, Second Dept 12-16-20

 

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THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WITH ADMISSIBLE EVIDENCE; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action. The bank’s motion for summary judgment should not have been granted:

The plaintiff failed to present admissible evidence establishing that the plaintiff or its counsel was in possession of the note at the time of commencement of the action. In support of its motion, the plaintiff submitted the affidavit of Howard R. Handville, a senior loan analyst at Ocwen Financial Corporation whose indirect subsidiary is Ocwen Loan Servicing, LLC (hereinafter Ocwen), the plaintiff’s loan servicer. Handville attested that he reviewed the servicing records maintained by Ocwen in its ordinary course of business, that prior servicers’ records were integrated into Ocwen’s records and relied upon by Ocwen and that “[b]ased on [his] review of the Servicing Records, the original Note and Mortgage for the Loan were physically delivered to Plaintiff’s custodian on April 25, 2007, prior to the commencement of this foreclosure action.” Handville further averred that “[s]ince that date, the original Note and Mortgage have remained in the physical possession of Plaintiff or its counsel.” Even if Handville’s affidavit was sufficient to lay a proper foundation for the admission of the “Servicing Records,” the affidavit was insufficient to establish standing because the records themselves were not submitted by the plaintiff. “‘[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted’ … , and ‘a witness’s description of a document not admitted into evidence is hearsay’ … . Deutsche Bank Natl. Trust Co. v Schmelzinger, 2020 NY Slip Op 07543, Second Dept 12-16-20

 

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THE BANK DID NOT DEMONSTRATE THE NOTICE REQUIREMENTS OF RPAPL 1304 WERE COMPLIED WITH; SUMMARY JUDGMENT IN FAVOR OF THE BANK SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice requirements of RPAPL 1304 were not demonstrated and, therefore, the bank’s motion for summary judgment in this foreclosure action should not have been granted:

Since the plaintiff failed to provide evidence of the actual mailing by either certified mail or first-class mail, “or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … , it failed to establish, prima facie, that it complied with RPAPL 1304. Since the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ opposition papers … . US Bank N.A. v McQueen, 2020 NY Slip Op 07423, Second Dept 12-9-20

 

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION BECAUSE OF THE POTENTIAL FOR A DEFICIENCY JUDGMENT AGAINST THE DECEDENT; DEFENDANT’S CROSS MOTION FOR LEAVE TO SUBSTITUTE HERSELF AS ADMINISTRATOR OF THE ESTATE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined decedent’s estate was a necessary party in this foreclosure action and defendant’s cross motion pursuant to CPLR 1015 for leave to substitute herself as administrator should have been granted:

In a mortgage foreclosure action, “[t]he rule is that a mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises, including his equity of redemption, is not a necessary party to foreclosure, unless a deficiency judgment is sought” … . Here, the judgment of foreclosure and sale contains language providing for a potential deficiency judgment against the decedent if the sale of the property does not cover the amount due to the plaintiff. Consequently, the decedent’s estate was a necessary party to the action … . Specialized Loan Servicing, LLC v Kalinin, 2020 NY Slip Op 07417, Second Dept 12-9-20

 

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SUPREME COURT SHOULD NOT HAVE DENIED SUPPRESSION ON A GROUND NOT RAISED BY THE PARTIES; THE APPELLATE COURT IS POWERLESS TO REVIEW THAT ISSUE; THE APPELLATE COURT IS ALSO POWERLESS TO REVIEW THE SECOND GROUND FOR SUPPRESSION ARGUED BY THE PEOPLE ON APPEAL BECAUSE THAT SECOND ISSUE WAS RESOLVED BELOW IN DEFENDANT’S FAVOR; MATTER SENT BACK TO SUPREME COURT FOR REVIEW OF THE SECOND ISSUE SHOULD THE PEOPLE BE SO ADVISED (SECOND DEPT).

The Second Department determined: (1) the motion court should not have decided the suppression motion on a ground not raised by the parties and the appellate court is powerless to review that issue (search valid pursuant to the automobile exception); (2) the other ground for upholding suppression argued by the People on appeal was decided in defendant’s favor and therefore the appellate court cannot review it (search valid as an inventory search). The denial of the suppression motion was reversed and the matter was sent back for review of the inventory search issue should the People be so advised:

The People’s current contention that the search of the defendant’s SUV was proper under the automobile exception to the warrant requirement because the police had probable cause to believe that the SUV contained a weapon is improperly raised for the first time on appeal … . … [T]he hearing record reveals … the People were relying solely on the theory that the gun was recovered pursuant to a lawful inventory search after the SUV was removed from the location. This Court “cannot uphold conduct of the police, and thereby affirm a trial court’s denial of suppression of evidence obtained pursuant to such conduct, on a factual theory not argued by the People before the trial court” … . …

As an alternative ground for upholding the suppression ruling, the People argue, as they did in the Supreme Court, that the recovery of the gun was lawful pursuant to a valid inventory search. However, because the Supreme Court decided the inventory search issue in the defendant’s favor, this Court is precluded from reviewing that issue on the defendant’s appeal … . …  Under the circumstances presented here, where we lack statutory authority to review an issue resolved in the appellant’s favor at a suppression hearing, the Court of Appeals has instructed that the required remedy is to “reverse the denial of suppression and remit the case to [the] Supreme Court for further proceedings” with respect to that issue … . People v Tates, 2020 NY Slip Op 07405, Second Dept 12-9-20

 

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THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE SUGGESTED THE WAIVER WAS AN ABSOLUTE BAR TO APPEAL; THE OFFICER WHO APPROACHED DEFENDANT ON THE STREET WAS NOT JUSTIFIED IN REACHING FOR AN OBJECT IN DEFENDANT’S SWEATSHIRT POCKET; DEFENDANT’S FLIGHT AND DISCARDING OF THE WEAPON WAS NOT INDEPENDENT OF THE OFFICER’S UNJUSTIFIED ACTIONS; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, granted defendant’s suppression motion and dismissed the indictment. The officer who approached defendant saw the shape of something heavy in defendant’s sweatshirt pocket, said “what’s this” and reached for it. At that point defendant ran and discarded a weapon:

When explaining the waiver of the right to appeal, the Supreme Court stated, inter alia, that as a result of the waiver, the defendant was “giving up [his] independent right to appeal [his] case to a higher court,” and that the case “ends here” upon sentencing. These statements incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal … . …

The officer was justified in conducting a common-law inquiry, and the officer was permitted to ask the defendant if he was carrying a weapon … . However, the officer was not justified in attempting to touch the defendant’s sweatshirt pocket as a minimally intrusive self-protective measure, since the defendant did not engage in any conduct justifying such an intrusion … . The defendant’s response of fleeing and discarding the gun was not “an independent act involving a calculated risk attenuated from the underlying [illegal] police conduct” … . People v Soler, 2020 NY Slip Op 07404, Second Dept 12-9-20

 

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).

The Second Department determined criminal possession of a weapon in the second degree and criminal possession of a firearm are inclusory concurrent counts:

… [B]ecause the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Nicoletti, 2020 NY Slip Op 07401, Second Dept 12-9-20

 

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SENTENCE IMPOSED AFTER THE SECOND TRIAL SHOULD NOT HAVE BEEN HIGHER THAN THE SENTENCE IMPOSED AFTER THE FIRST TRIAL (SECOND DEPT).

The Second Department, reducing defendant’s sentence imposed after a second trial, determined the sentence imposed after the first trial should not have been “enhanced:”

“Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is re-tried, convicted, and given a greater sentence than that imposed after the initial conviction” … . “[C]riminal defendants should not be penalized for exercising their right to appeal” … .  Where, as here, the defendant is convicted of the same count at a new trial following a successful appeal, the sentencing court may not impose a higher sentence unless its reasons for doing so affirmatively appear on the record, and are “‘based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding'” … . Inasmuch as the prosecutor asserted that the defendant demonstrated no remorse for his crimes, the record reflects only that the defendant pleaded not guilty to the charges and exercised his constitutional right to remain silent … . In addition, the ongoing impact of the crime on the complainant does not constitute “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” … . Accordingly, the court should not have imposed the higher sentence. People v Diaz, 2020 NY Slip Op 07392, Second Dept 12-9-20

 

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MOTHER HAD FLED TO ARGENTINA WITH THE CHILD WHILE CUSTODY PROCEEDINGS WERE PENDING; FAMILY COURT SHOULD NOT HAVE DENIED THE MATERNAL GRANDMOTHER’S PETITION SEEKING VISITATION ON THE GROUND SHE DID NOT HAVE STANDING; MATTER REMITTED FOR A BEST INTERESTS HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the court erred in finding the maternal grandmother did not have standing to seek visitation and remitted the matter for a best interests hearing. Mother had fled to Argentina with the child when custody proceedings were pending:

“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . The court must first determine if the grandparent has standing, based on death or equitable circumstances, and if it determines that the grandparent has established standing, it must then determine whether visitation is in the best interests of the child (see Domestic Relations Law § 72[1] …).

“Standing [based upon equitable circumstances] should be conferred by the court, in its discretion, only after it has examined all the relevant facts” … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . “It is not sufficient that the grandparents allege love and affection for their grandchild” … . “They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .

Here, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record … . The evidence demonstrated that the grandmother developed a relationship with the child early on in his life and thereafter made repeated efforts to continue that relationship … . Matter of Noguera v Busto, 2020 NY Slip Op 07385, Second Dept 12-9-20

 

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THE PROFESSIONAL LIABILITY INSURANCE POLICYHOLDERS (DOCTORS), NOT THE POLICYHOLDERS’ EMPLOYER WHICH PAID THE PREMIUMS, ARE ENTITLED TO THE PAYMENTS ASSOCIATED WITH THE CONVERSION OF THE MUTUAL INSURANCE COMPANY TO A STOCK INSURANCE COMPANY (SECOND DEPT).

The Second Department, in a full-fledged decision by Justice Scheinkman, reversing Supreme Court, determined the policyholders (doctors), not the policyholders’ employer which paid the professional liability insurance premiums, were entitled the payments associated with the conversion of a mutual insurance company to a stock insurance company. The Second Department further held that the doctors were not unjustly enriched from the standpoint of their employer because the payments to the doctors were not being made by the employer:

We agree with the Third and Fourth Departments that Insurance Law § 7307 makes clear that the policyholder is entitled to the consideration … . Thus, the defendants [doctors] are “legally entitled to receive the cash consideration” … .

In reaching this conclusion, we also note that the First Department … did not express any contrary views as to the import of the statute, the conversion plan, and the DFS [New York Department of Financial Services] approval decision. Rather, the First Department’s determination to award the cash consideration to the employer medical group was predicated entirely upon the theory of unjust enrichment … . Maple Med., LLP v Scott, 2020 NY Slip Op 07366, Second Dept 12-9-20

 

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