You are here: / Second Department

Tag Archive for: Second Department

DEFENDANT SHOULD HAVE BEEN ALLOWED TO MAKE A PERSONAL STATEMENT BEFORE RESENTENCING, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined defendant should have been allowed to make a sentence before the sentence was pronounced:

At that proceeding, the defendant requested an opportunity to address the court. The court denied the defendant’s request. The defendant appeals, and we reverse.

A defendant is entitled “to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement” ( CPL 380.50 [1]). “[T]he provisions of CPL 380.50 apply to occasions of resentencing as well as to those of initial sentencing”  … . Here, the defendant was denied that opportunity. Accordingly, we remit the matter … for resentencing to give the defendant an opportunity to make a statement in his behalf … . People v Taylor, 2020 NY Slip Op 04413, Second Dept 8-5-20

 

,

BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial before a different judge, determined defendant was deprived of a fair trial by the judge’s entering a plea agreement with a testifying codefendant:

The defendant …  contends that he was deprived of his due process right to a fair trial by the County Court’s act of entering into a plea agreement with the testifying codefendant. The court’s agreement with the codefendant was made in conjunction with a cooperation agreement reached between the codefendant and the People. The codefendant had been charged with, inter alia, murder in the second degree. The People had promised to recommend a determinate sentence of imprisonment between two and seven years in exchange for the codefendant’s guilty plea to the reduced charge of attempted robbery in the second degree. However, the court promised the codefendant a sentence of only probation in exchange for her testimony against the defendant. Although the defendant failed to preserve this issue for appellate review (see CPL 470.05[2]), we nevertheless reach it in the exercise of our interest of justice jurisdiction.

We agree with the defendant that, under the circumstances here, the County Court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant requiring that individual to testify against defendant in exchange for a more favorable sentence” … . By doing so, “the trial court abandoned the role of a neutral arbiter and assumed the function of an interested party, thereby creating a specter of bias that requires reversal” … . People v Greenspan, 2020 NY Slip Op 04408, Second Dept 8-5-20

 

THE JUDGE DID NOT PRONOUNCE THE LENGTH OF THE TERM OF PROBATION, SENTENCE VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge’s failure to pronounce the term of probation required remittal:

CPL 380.20 requires that courts “must pronounce sentence in every case where a conviction is entered.” “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … . Here, although the parties do not dispute that, as part of the negotiated disposition, the defendant was promised a term of probation of three years, the sentence must be vacated and the matter must be remitted to the Supreme Court, Kings County, for resentencing because the court failed to pronounce the length of the probation term … . People v Childs, 2020 NY Slip Op 04404, Second Dept 8-5-20

 

, ,

ALTHOUGH THE TENANT HAD VIOLATED CERTAIN PROVISIONS OF THE LEASE, THE EVICTION PENALTY SHOCKED THE CONSCIENCE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a dissent, determined the housing authority’s (THA’s) eviction of petitioner was too severe a penalty for her alleged sporadic failure to make timely rent payments, her alleged failure to allow an exterminator to enter the apartment, and her single allegedly “rude and loud” phone conversation with a THA employee. The dissenter argued eviction was an appropriate penalty:

Here, although the petitioner made late rental payments during the subject period, she did eventually pay all of the rent due, as well as the fees that had accrued on the account. Moreover, the record establishes that during the subject period, the amount of the petitioner’s rent fluctuated monthly, with little advance notice, such that her December 2015 rent was nearly three times as much as her September 2015 rent. …

… [T]he two isolated incidents concerning the exterminator and the offensive telephone conversation were not proportionate to the penalty of eviction. First, although the petitioner denied the exterminator entry to her apartment on March 14, 2016, the THA’s evidence otherwise established that the petitioner was the one who had requested treatment for bedbugs, she fully complied with the first treatment, and over several years of biweekly extermination for other pests, she had never denied the exterminator entry … . …

… [T]he petitioner’s single threat of violence occurred in a heated telephone conversation, immediately before the petitioner hung up in frustration and anger. The THA employee to whom the comment was directed testified at the hearing that she found the comment “[e]xtraordinary and extremely rude,” but she did not testify that she was frightened or that she understood the comment to be a genuine threat of violence. …

The penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to the THA or the public. Under the circumstances of this case, the penalty of termination of the petitioner’s tenancy is so disproportionate to the offenses committed as to be shocking to the judicial conscience as a matter of law … . Matter of Jacobs v Tuckahoe Hous. Auth., 2020 NY Slip Op 04392, Second Dept 8-5-20

 

,

THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED; THERE WAS NO SHOWING THE CITY AND FIRE DEPARTMENT HAD TIMELY KNOWLEDGE OF A POTENTIAL NEGLIGENCE ACTION ARISING FROM A RESPONSE TO A 911 CALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application for leave to file a late notice of claim should not have been granted. Plaintiff alleged the city and the fire department (the appellants) were negligent in the response to a 911 call made after petitioner’s daughter was discovered drowning in a swimming pool. The petitioner did not demonstrate the appellants were timely made aware of a potential negligence action:

Contrary to the petitioner’s contention, the appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter by virtue of their possession of a portion of the relevant 911 call. The appellants demonstrated that 911 calls are initially answered by a representative of the New York Police Department (hereinafter NYPD) and are transferred to the FDNY’s Emergency Medical Dispatch Center if, as here, the reported emergency is of a medical nature. The appellants showed that the NYPD portion of the call was deleted in the normal course of business after 180 days, while the FDNY portion was retained. The FDNY portion of the call and other communications maintained by the appellants revealed that the arrival on the scene of an Advanced Life Support ambulance was delayed because the ambulance was initially directed to an incorrect address, but did not reveal whether the appellants’ employees or the 911 caller was the source of the error. Rather, it was the deleted NYPD portion of the call that would likely have contained that information. Furthermore, the petitioner’s daughter’s pulse and breathing were restored in the ambulance, and nothing in the records maintained by the appellants revealed the extensive injuries that the petitioner’s daughter allegedly suffered. Thus, despite the appellants’ knowledge of facts surrounding the response to the 911 call, there was little to suggest injury attributable to any negligence on their part … .

… [E]ven assuming that the petitioner demonstrated an absence of prejudice, in response, the appellants made a particularized evidentiary showing that they would be substantially prejudiced by the more than one year delay in serving the notice of claim by showing that the NYPD portion of the call, which would likely have revealed the source of the erroneous residential address, had been deleted … . The petitioner additionally failed to demonstrate a reasonable excuse for the failure to timely serve a notice of claim … . Matter of Adbelghany v City of New York, 2020 NY Slip Op 04391, Second Dept 8-5-20

 

EVEN THOUGH THE BREACH OF CONTRACT ACTION WAS TIME-BARRED, THE EXISTENCE OF A VALID CONTRACT PRECLUDED AN ACTION IN QUANTUM MERUIT OR QUASI CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should have been granted because it was time-barred. In addition, the quantum meruit cause of action should have been dismissed because a valid contract precludes recovery in quasi contract:

The defendants established, prima facie, that this action was not commenced within the limitations period set forth in the contract for breach of contract claims … . In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendants.

… [T]o the extent that the complaint seeks recovery in quantum meruit, it should have been dismissed since “the existence of a valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter” … . D. Gangi Contr. Corp. v City of New York, 2020 NY Slip Op 04378, Second Dept 8-5-20

 

, ,

DEFENDANT’S MOTION TO RENEW HIS OPPOSITION TO THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; THE BANK HAD ORIGINALLY ALLEGED IT POSSESSED THE NOTE AND THEREFORE HAD STANDING TO FORECLOSE; SUBSEQUENTLY THE BANK SUBMITTED A LOST NOTE AFFIDAVIT IN SUPPORT OF ITS MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to renew his opposition to the bank’s motion for summary judgment should have been granted in this foreclosure action. In support of its summary judgment motion the bank alleged it had standing based upon possession of the note. However, in support of the bank’s subsequent motion to confirm the referee’s report the bank submitted a lost note affidavit:

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]), and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]).

Here, in support of his cross motion for leave to renew, the borrower had a reasonable justification for his failure to present the new facts in opposition to the original motion, since the plaintiff had previously—and unequivocally—represented that the original note was in Investors’ possession, and only later disclosed that the original note had in fact been lost, without providing any further details as to when the search for the note occurred, who conducted the search, and when the note was lost … .

Under these circumstances, the Supreme Court should have granted the borrower’s cross motion for leave to renew and, upon renewal, denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the borrower, to strike his answer and counterclaims, and for an order of reference, based on unresolved issues of fact regarding the plaintiff’s standing … . CitiMortgage, Inc. v Barbery, 2020 NY Slip Op 04377, Second Dept 8-5-20

 

, ,

ALTHOUGH PLAINTIFF BANK DID NOT DEMONSTRATE THE RPAPL 1304 NOTICE WAS MAILED TO DEFENDANT IN THIS FORECLOSURE ACTION, DEFENDANT’S DENIAL OF RECEIPT OF THE NOTICE WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross motion for summary judgment in this foreclosure action should not have been granted. Supreme Court properly found that the bank did not provide sufficient proof that the Real Property Actions and Proceedings Law (RPAPL) 1304 notice was mailed to defendant. But defendant’s mere denial of receipt of the notice was not enough to warrant summary judgment in defendant’s favor:

The plaintiff failed to establish, prima facie, that it mailed the RPAPL 1304 notice, because “the plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by an individual with personal knowledge of that procedure” … .

We disagree, however, with the Supreme Court’s determination to grant [defendant] Parker’s cross motion for summary judgment dismissing the complaint insofar as asserted against her. Parker offered only a mere denial of receipt of the RPAPL 1304 notice in support of her cross motion, and such a mere denial is insufficient to establish entitlement to such relief … . Bank of N.Y. Mellon v Parker, 2020 NY Slip Op 04376, Second Dept 8-5-20

 

,

WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant New York City Housing Authority’s (NYCHA’s) summary judgment motion in this playground injury case should have been granted. Plaintiff alleged a water sprinkler, in which children could play, was too close to the monkey bars and infant plaintiff was injured falling from the wet monkey bars. However the plaintiff presented evidence that children who were wet from playing in the sprinkler had climbed the monkey bars before infant plaintiff slipped and fell. The Second Department held that finding the NYCHA negligent would have to be based upon speculation:

The infant plaintiff testified at a General Municipal Law § 50-h hearing and his deposition that the wind was pushing water from the sprinkler to the monkey bars. However, the infant plaintiff also testified at his deposition that, immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” … . Given the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars … .

The affidavit of the infant plaintiff to the effect that the ladder was wet before the wet children climbed on it “presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony” that he did not see that the ladder was wet before he climbed on it … .  Wilson v New York City Hous. Auth., 2020 NY Slip Op 04427, Second Dept 8-5-20

 

,

REFEREE’S FINDINGS WERE BASED UPON HEARSAY PROVIDED BY THE BANK IN THIS FORECLOSURE ACTION; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The report was based upon hearsay provided by the bank and therefore the referee’s findings were not supported by the record:

The Supreme Court should have denied the plaintiff’s motion, in effect, to confirm the referee’s report and for leave to enter a judgment of foreclosure and sale. In support of its motion, the plaintiff relied upon the affidavit of a representative of its loan servicer, who attested, based upon his review of the servicer’s books and records, to the amount due under the mortgage loan. However, the plaintiff’s affiant failed to annex or otherwise produce the subject business records. Under the circumstances, the affidavit relied upon by the plaintiff constituted inadmissible hearsay and lacked probative value, and the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Bank of N.Y. Mellon v Fontana, 2020 NY Slip Op 04375, Second Dept 8-5-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy