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THE BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF STANDING OR COMPLIANCE WITHE THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANKS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence of standing to bring the foreclosure action and compliance with the RPAPL 1304 notice requirements:

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the employee of the plaintiff’s loan servicer stated in her affidavit, which was submitted by the plaintiff in support of its motion, that the plaintiff was the holder of the note, she never stated that the plaintiff was the holder of the note at the time the action was commenced … . Further, the plaintiff failed to establish that the note was attached to the complaint at the time of the commencement of the action … . …

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because the employee of the plaintiff’s loan servicer, in her affidavit, failed to assert personal knowledge of the purported mailing or make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures in order to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Bank of Am., N.A. v Palacio, 2020 NY Slip Op 05480, Second Dept 10-7-20

 

COUNTY COURT SHOULD HAVE FURTHER RESTRICTED DISCOVERY FOR THE PROTECTION OF WITNESSES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined certain aspects of the People’s application to restrict discovery for witness safety should have been granted:

… [T]he application to vacate or modify the order … is granted to the extent that the order is modified by deleting the provision thereof granting the People’s motion for a protective order only to the extent that the People may withhold the name of the confidential informant until 15 days prior to a scheduled pre-trial hearing or trial, and substituting therefor a provision granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Jeanty, 2020 NY Slip Op 05555, Second Dept 10-7-20

 

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PLAINTIFF HOMEOWNERS’ ACTION AGAINST THE INSURER FOR BREACH OF CONTRACT, FRAUD AND NEGLIGENCE SHOULD HAVE BEEN DISMISSED; PLAINTIFF ACKNOWLEDGED THE HOME WAS VACANT WHEN THE POLICY WAS PURCHASED AND AT THE TIME OF THE FIRE AND THE POLICY EXCLUDED COVERAGE FOR VACANT PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s motion for summary judgment in this “disclaimed coverage” case should have been granted. Plaintiff homeowner acknowledged the home had been vacant and was vacant at the time of the fire. Plaintiff’s allegation that the insurance agent was aware the house was vacant when the policy was purchased was rejected because plaintiff was deemed to have read the policy (which excluded coverage for vacant property):

The defendants demonstrated, prima facie, that the policy only provided coverage if the premises were used as a residence by the plaintiffs and that the plaintiffs never resided at the premises during the policy period … . * * *

“The element of justifiable reliance is ‘essential’ to any fraud claim” … . Here, the defendants established, prima facie, that any reliance by [plaintiff] on an alleged misrepresentation made by [the insurance agent] was not justifiable since [plaintiff] testified that he received a copy of the policy when it was issued in August 2010, and again in 2011, when it was renewed … . …

The defendants made a prima facie showing of their entitlement to judgment as a matter of law dismissing [the negligence] cause of action by submitting evidence which demonstrated that [plaintiff] only made a general request for homeowner’s insurance, and did not specifically request coverage for premises that were not owner occupied … , and that no special relationship existed between the parties … . Waknin v Liberty Ins. Corp., 2020 NY Slip Op 05551, Second Dept 10-7-20

 

COUNTY COURT’S ORDER MODIFIED TO ALLOW WITHHOLDING THE NAMES OF THE CONFIDENTIAL INFORMANT AND UNDERCOVER OFFICERS UNTIL TRIAL AND RESTRICTING ACCESS TO THE AUDIO AND VIDEO RECORDINGS OF THE NARCOTICS SALES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the name of the confidential informant can be withheld until trial, the names of the undercover officers can be withheld until trial, and audio and video recordings of the narcotics sales can only be shown to defense counsel at the prosecutor’s office:

… [T]he order is modified by … granting the People’s motion for a protective order to the extent that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor’s office, (2) disclosure of the name and contact information of the confidential informant shall be delayed until the commencement of trial, and (3) disclosure of the names and work affiliation of the undercover personnel shall be delayed until the commencement of trial … . People v Singh, 2020 NY Slip Op 05479, Second Dept 10-6-20

 

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THE VILLAGE DID NOT DEMONSTRATE INFANT PLAINTIFF ASSUMED THE RISK OF INJURY FROM A TIRE SWING IN THE VILLAGE PLAYGROUND; THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village did not demonstrate infant plaintiff assumed the risk of injury from a tire swing in a village playground. Apparently the swing struck a railing causing infant plaintiff’s leg to slip out from under him and his leg struck a support post:

… [T]he Village failed to demonstrate its entitlement to judgment as a matter of law based on the doctrine of primary assumption of risk. Although the locations of the railing and support post were open and obvious, the submissions of the Village failed to establish, prima facie, that the structure was not negligently designed so as to permit the tire to come into contact with the railing and support post, thereby unreasonably increasing the risks over and above the usual dangers that are inherent in playing on a tire swing … . In addition, in light of the infant plaintiff’s age and limited experience with this tire swing, it cannot presently be determined as a matter of law that he was aware of and fully appreciated the risks involved with the tire being able to come into contact with the railing and support post … .

Further, the Village failed to establish, prima facie, that it neither created the allegedly dangerous condition nor had actual or constructive notice of the condition … , or that the infant plaintiff’s accident was not foreseeable … . Berrin v Incorporated Vil. of Babylon, 2020 NY Slip Op 05177, Second Dept 9-30-20

 

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CANCELLATION AND DISCHARGE OF A MORTGAGE PURSUANT TO RPAPL 1501 (4) MUST BE SOUGHT BY AN ACTION OR COUNTERCLAIM, NOT BY A MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to cancel and discharge the mortgage pursuant to RPAPL 1501 (4) should not have been granted. That relief must be sought by an action or counterclaim:

Supreme Court should not have granted that branch of the motion which was to cancel and discharge the mortgage pursuant to RPAPL 1501(4), since that relief must be sought in an action or counterclaim and not by motion … . Bank of N.Y. Mellon v 11 Bayberry St., LLC, 2020 NY Slip Op 05175,  Second Dept 9-30-20

A MOTION TO DISMISS AN ACTION FOR A DECLARATORY JUDGMENT FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE THERE ARE NO QUESTIONS OF FACT, SHOULD BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR (SECOND DEPT).

The Second Department noted that where a motion to dismiss an action for declaratory judgment is made, the motion should be deemed a request for a declaration in defendant’s favor:

The courts may consider “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where ‘no questions of fact are presented [by the controversy]'”  … . “Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” … . Astoria Landing, Inc. v New York City Council, 2020 NY Slip Op 05174, Second Dept 9-30-20

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED; THE REFEREE RELIED ON HEARSAY AND FAILED TO CONDUCT A HEARING ON NOTICE AS REQUIRED BY THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed.  The evidence of default presented to the referee was hearsay and the referee did not hold a hearing on notice as required by CPLR 4320:

… [W]ith respect to the amount due to the plaintiff, the referee based his findings on the affidavit of Nicholas J. Raab, an employee of Specialized Loan Servicing, LLC, the plaintiff’s loan servicing agent for the subject loan. While Raab provided a proper foundation for the admission of business records made by a prior servicer … , he failed to attach the business records themselves to his affidavit. Accordingly, Raab’s assertions regarding the date of the defendant’s default in making her mortgage payments, the total sum due to the plaintiff, which included the amount of accrued interest calculated from the date of default, and amounts purportedly paid in an escrow advance and for property preservation, without the business records themselves, constituted inadmissible hearsay … .

… [T]he referee should not have computed the amount due to the plaintiff without holding a hearing on notice to the defendant (see CPLR 4313 …). “While [the] Supreme Court has the authority to engage a Referee to compute and report the amount due under a mortgage (see, RPAPL 1321[1]), and can, in its order of reference, define the scope of the reference and delineate the Referee’s powers and duties thereunder (CPLR 4311), absent any specified restrictions the Referee has those powers and duties delineated in CPLR article 43 and also must comply with the procedures specified therein … . One of the specified procedures is the conducting of a hearing (CPLR 4320[a]), upon notice (CPLR 4313)” … . Wells Fargo Bank, N.A. v Yesmin, 2020 NY Slip Op 05257, Second Dept 9-30-20

 

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PLAINTIFF BANK FAILED TO SHOW COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AGREEMENT AND RPAPL 1304; 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 bank failed to demonstrate the notice of default was provided in accordance with the mortgage agreement, failed to demonstrate compliance with the notice requirements of RPAPL 1304 and failed to demonstrate such compliance was not required:

… [T]he plaintiff failed to demonstrate, prima facie, that it complied with a condition precedent contained in the consolidated mortgage agreement, requiring the lender to send a notice of default prior to the commencement of the action. In this respect, the unsubstantiated and conclusory statements in the affidavit of an employee of the plaintiff’s servicer, which indicated that the required notice of default was sent in accordance with the terms of the mortgage, combined with a copy of the notice of default, failed to show that the required notice was mailed by first-class mail or actually delivered to the notice address if sent by other means, as required by the consolidated mortgage agreement … .

… [T]he plaintiff failed to demonstrate, prima facie, that it properly served upon the defendant the notice required by RPAPL 1304. The mailing required under that statute “‘is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, 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'” … . Here, the plaintiff proffered neither evidence of the actual mailings nor evidence of a standard office mailing procedure, but rather relied upon its servicer’s conclusory and unsubstantiated affidavit averring that the notice was sent, along with a copy of the notice. This evidence failed to satisfy the plaintiff’s burden … . Moreover, contrary to the Supreme Court’s conclusion, affidavits of service pertaining to the summons and complaint as well as the defendant’s verified answer, which demonstrated that the defendant was present in the State of Florida at the time of service of those pleadings, failed to demonstrate, prima facie, that the subject property was not the defendant’s “principal dwelling,” so as to establish that compliance with RPAPL 1304 was not required … . U.S. Bank N.A. v Negrin, 2020 NY Slip Op 05253, Second Dept 9-30-20

 

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SOME RESTRICTIONS ON DISCLOSURE SHOULD HAVE BEEN IMPOSED BY COUNTY COURT (SECOND DEPT).

The Second Department, reversing County Court, determined some restrictions on making discovery available to the defense should have been imposed:

Applying the factors set forth in CPL 245.70(4), including the concerns for witness safety and protection, I conclude that the County Court improvidently exercised its discretion in denying the People’s request in its entirety. Under the particular facts and circumstances of this case … the County Court should have directed disclosure of the audio and video recordings of the narcotics sales be made available forthwith to defense counsel only, to be viewed at the prosecutor’s office. Additionally, the County Court should have delayed disclosure of the names, addresses, and contact information of the confidential informant and undercover personnel until the commencement of the trial. People v Zayas, 2020 NY Slip Op 05236, Second Dept 9-30-20

 

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