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TEN POINTS SHOULD NOT HAVE BEEN ASSESSED FOR AN OLD MINOR OFFENSE IN PRISON, DEFENDANT’S RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk level to level one, determined the 10 point assessment for unsatisfactory conduct in prison was not justified:

However, the record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the class A misdemeanor of promoting prison contraband in the second degree (Penal Law § 205.20). This conviction constituted the sole act of misconduct while confined cited by the People, and it occurred approximately four years before the SORA hearing, prior to the defendant’s transfer to State prison. Since the defendant’s misconduct was neither recent nor repeated, the assessment of points for that misdemeanor was not supported by the record … . People v Hernandez, 2020 NY Slip Op 06159, Second Dept 10-28-20

 

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE HE COMMITTED HIS SECOND OFFENSE BEFORE HE WAS SENTENCED FOR HIS FIRST OFFENSE (SECOND DEPT).

The Second Department determined defendant should not have been sentenced as a persistent violent felony offender:

… [T]he defendant was improperly adjudicated a persistent violent felony offender, as he committed his second violent felony offense prior to the time when he was sentenced for his first felony conviction (Penal Law § § 70.08[1], 70.04[1][b][ii]; CPL 400.16 [2]; see People v Morse, 62 NY2d 205; People v Ritorto, 125 AD3d 896; People v Cooper, 245 AD2d 569) … . People v Robinson, 2020 NY Slip Op 06151, Second Dept 10-28-20

 

THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have dismissed pursuant to CPLR 3216 because the 90-day notice was defective:

On November 20, 2012, the Supreme Court issued a certification order which, inter alia, certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court. (CPLR 3216).” The plaintiff failed to file a note of issue, and the action was ministerially dismissed, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . …

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute … . Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . HSBC Bank USA, N.A. v Arias, 2020 NY Slip Op 06108, Second Dept 10-28-20

 

A SUBSEQUENT DEED INCLUDING THE EASEMENT WAS A VALID CORRECTION DEED; THE STRANGER TO THE DEED RULE DID NOT APPLY BECAUSE THE DEEDS WITH THE EASEMENT CAME FROM THE SAME GRANTOR; THE EASEMENT WAS THEREFORE VALID AND DEFENDANTS SHOULD NOT HAVE BEEN ENJOINED FROM CLEARING IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a deed was correction deed which included an easement not mentioned in the prior deed. The Second Department also held that the “strange to the deed” rule did not apply because the deeds with the easement came from the same grantor. Therefore the easement was enforceable and defendants should not have been enjoined from clearing trees and other obstructions from the walkway:

… [A]lthough the 1972 deed does not use the phrase “correction deed” or similar phrases, and it does not reference the 1971 deed or the prior conveyance, the 1972 deed is a deed of correction that superseded the 1971 deed … . * * *

We disagree with the Supreme Court’s determination that the easement was void ab initio under the stranger to the deed rule … . … Since the dominant Lots … and the servient … shared a common grantor at the time the reservation was made, the stranger to the deed rule does not apply … . Garson v Tarmy, 2020 NY Slip Op 06104, Second Dept 10-28-20

 

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ALTHOUGH INSURANCE LAW 3420(d)(2) REQUIRING TIMELY NOTICE OF THE DISCLAIMER OF INSURANCE COVERAGE DOES NOT APPLY TO THIS BREACH OF CONTRACT (AS OPPOSED TO A PERSONAL INJURY) ACTION, THE DISCLAIMERS WERE UNTIMELY UNDER COMMON LAW WAIVER AND ESTOPPEL PRINCIPLES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurance companies’ disclaimers of coverage of damages associated with the insured’s breach of contract were not timely. The insured county was found to have breached a contract and was assessed nearly $11,000,000 in damages:

Contrary to the County’s contention, while Insurance Law § 3420(d)(2) imposes strict requirements on an insurer to give timely written notice if it is disclaiming liability or denying coverage for death or bodily injury arising out of an accident, “[w]here, as here, the underlying insurance claim does not arise out of an accident involving bodily injury or death, Insurance Law § 3420 and its heightened requirements do not apply” … . Instead, an insurer’s delay in disclaiming coverage “should be considered under common-law waiver and/or estoppel principles” … . …

Here, the County proffered evidence that * * * [the innsurers] did not respond [for] 6 months and 17 months, respectively, after they were notified of the subject loss. County of Suffolk v Ironshore Indem., Inc., 2020 NY Slip Op 06099, Second Dept 10-28-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1304 AND DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it met the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 and the bank did not demonstrate it had standing the bring the action:

… [T]he plaintiff failed to submit an affidavit of mailing or proof of first-class mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Sherry Benight, who was employed as a document control officer for Select Portfolio Servicing, Inc. (hereinafter SPS), which began servicing the subject loan on the plaintiff’s behalf on July 15, 2015, as well as copies of the purported notices, dated July 22, 2013. Although one of the notices contained a first-class mail 10-digit barcode, the plaintiff submitted no evidence that the letter was actually sent by first-class mail more than 90 days prior to commencement of the action. In her affidavit, Benight stated that she could confirm that the notice was sent to the defendant on July 22, 2013. However, Benight did not have personal knowledge of the purported mailing. Further, since she did not aver that she was familiar with the mailing practices and procedures of Bank of America, N.A., the entity that purportedly sent the notices, she did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . To the extent that Benight relied upon a screenshot of a TrackRight Transaction Report, she failed to establish how or when the report was created, that it was made in the regular course of business, or that it was created soon after the notices were purportedly mailed to the defendant … . …

The plaintiff also attempted to establish standing through the submission of Benight’s affidavit, but this also was insufficient. Benight asserted that the original note was delivered to the plaintiff on September 7, 2004, and that the plaintiff had since remained in possession of the note. Benight, however, did not have personal knowledge of the plaintiff’s receipt of the note, did not attest that she had personal knowledge of the plaintiff’s business practices and procedures, and also did not submit any admissible business records to show that the plaintiff possessed the note at the time this action was commenced … . Bank of N.Y. Mellon v Porfert, 2020 NY Slip Op 06083, Second Dept 10-28-20

 

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NEW YORK DOES NOT RECOGNIZE A COMMON LAW CAUSE OF ACTION FOR SEXUAL HARASSMENT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined New York does not recognize a cause of action for sexual harassment:

… New York does not recognize an independent, common-law cause of action to recover damages for sexual harassment … . Rather, allegations of sexual harassment—which typically arise in the context of an asserted violation of Title VII of the Civil Rights Law of 1964 (42 USC, ch 21, § 2000e et seq.), the New York State Human Rights Law (Executive Law § 296), and/or the New York City Human Rights Law (Administrative Code of City of NY § 8-107)—may form the basis of cognizable common-law tort theories such as, inter alia, assault and battery, negligent training and supervision, and intentional infliction of emotional distress … .

Accordingly, the Court of Claims should have granted that branch of the State’s cross motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the claim as was predicated upon a purported common-law cause of action to recover damages for sexual harassment. Budha T. v State of New York, 2020 NY Slip Op 05966, Second Dept 10-21-20

 

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THE EVIDENCE OF DEFENDANT’S DEFAULT WAS HEARSAY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION 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. The proof of defendant’s default was hearsay:

For evidence of default, the plaintiff relied upon the affidavit of a foreclosure manager employed by the plaintiff, wherein she attested, among other things, that the defendant defaulted under the loan in February 2011. By attesting that she was familiar with the record-making practices of her employer, that the records were made in the regular course of business, that it was the regular course of such business to make the record, and that the records were made “at or about the time of the event being recorded” … , the foreclosure manager satisfied the requirements for establishing a foundation for the admission of business records (see CPLR 4518[a] …). However, since the foreclosure manager failed to submit any of the business records upon which she contends she relied in making her affidavit, her averment as to the defendant’s purported default “‘constitute[s] inadmissible hearsay and lack[s] probative value'” … . As “it is the business record itself, not the foundational affidavit, [*2]that serves as proof of the matter asserted” … , and “a witness’s description of a document not admitted into evidence is hearsay” … , the assertions by the foreclosure manager as to the contents of the records were “inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit” … . Selene Fin., L.P. v Coleman, 2020 NY Slip Op 05962, Second Dept 10-21-20

 

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DEFENDANT PLED GUILTY TO POSSESSION OF A GRAVITY KNIFE WHICH WAS DE-CRIMINALIZED SHORTLY THEREAFTER; CONVICTION REVERSED IN THE INTEREST OF JUSTICE WITH THE PEOPLE’S CONSENT (SECOND DEPT).

The Second Department, in the interest of justice and as a matter of discretion, with the People’s consent, reversed defendant’s conviction of possession of a gravity knife, which was de-criminalized shortly after the conviction:

On November 29, 2018, during his plea allocution to attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1]), the defendant admitted that on or about January 9, 2018, he attempted to possess a gravity knife. On January 31, 2019, pursuant to his negotiated plea agreement, the defendant was sentenced to an indeterminate term of imprisonment of 1½ to 3 years.

The defendant contends that the judgment of conviction should be reversed because, inter alia, shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be vacated and the indictment dismissed. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 (see L 2019, ch 34, § 1), under the circumstances of this case, we vacate the judgment and dismiss the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Merrill, 2020 NY Slip Op 05936, Second Dept 10-21-20

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT’S ONE-YEAR SENTENCE, WHICH HAD ALREADY BEEN SERVED, WAS REDUCED BY ONE DAY IN PART TO ADDRESS THE IMMIGRATION CONSEQUENCES OF A ONE-YEAR SENTENCE (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, reduced defendant’s sentence by one day based in part on the immigration consequences of a one-year sentences:

The defendant’s purported waiver of his right to appeal was invalid because the Supreme Court’s colloquy mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal, and failed to inform the defendant that appellate review remained available for certain issues … . Further, the written waiver form signed by the defendant was insufficient to overcome the deficiencies in the court’s explanation of the waiver of the right to appeal, since it did not contain language clarifying that appellate review remained available for certain issues … . Thus, the purported waiver does not preclude this Court from reviewing the issue of whether the defendant’s sentence was excessive … .

Although the defendant has served his sentence, the question of whether the sentence imposed should be reduced is not academic, since the sentence may have potential immigration consequences … . People v Joseph, 2020 NY Slip Op 05928, Second Dept 10-21-20

 

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