Second Department – Page 261 – New York Appellate Digest

HEARSAY DID NOT PROVE BANK HAD STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence submitted by plaintiff bank to establish standing in this foreclosure action was inadmissible hearsay:

“… [T]he plaintiff submitted the affidavit of a foreclosure specialist for Seterus, Inc. (hereinafter Seterus), which purports to be a subservicer for the Federal National Mortgage Association as assignee of the plaintiff as assignee of OneWest. The affidavit constitutes inadmissible hearsay, as the foreclosure specialist did not attest that he had personal knowledge of OneWest’s business practices and procedures … , or that any records provided by OneWest were incorporated into Seterus’s own records … , and also did not submit any documents to show that OneWest possessed the note at the time of the commencement of this action (see CPLR 4518[a] …). Since the foreclosure specialist also failed to establish a foundation to show that he had personal knowledge as to whether OneWest possessed the note prior to commencement of the action (see CPLR 3212[b] …), the plaintiff failed to establish its standing. The documents attached to the affirmation of counsel for the plaintiff are inadmissible hearsay as counsel failed to establish a foundation for admission of such documents as business records and the foreclosure specialist’s affidavit does not reference the records attached to counsel’s affirmation … . Moreover, even if a proper foundation for the admissibility of the business records had been established, the submitted documents do not show that OneWest had ownership of and the right to enforce the note at the time of the commencement of the action … . The plaintiff also failed to show OneWest’s standing based upon a purported written assignment of the mortgage from MERS [Mortgage Electronic Registration system] to OneWest, as the plaintiff did not demonstrate that MERS had the authority to assign the note …”. Ocwen Loan Servicing, LLC v Schacker, 2020 NY Slip Op 04313, Second Dept 7-29-20

July 29, 2020

Civil Procedure, Evidence, Foreclosure

DEFENDANTS’ CONCLUSORY AND UNSUBSTANTIATED CLAIMS DID NOT REBUT THE SWORN ALLEGATIONS OF PROPER SERVICE AND MAILING OF THE SUMMONS, COMPLAINT AND REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1303 NOTICE IN THIS FORECLOSURE ACTION; THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the complaint in the foreclosure action on the ground defendants were never served should not have been granted:

… [T]he affidavit of service contained sworn allegations reciting that service was made upon Simone Cohen at 4:48 p.m. on March 3, 2009, by delivering to her the summons, complaint, and notice required by RPAPL 1303 at the subject property. The affidavit of service included a description of Simone Cohen. Another affidavit of service of the same process server contained sworn allegations reciting that service was made upon Avi Cohen by delivering a copy of the relevant papers to “SIMONE COHEN (WIFE),” a person of suitable age and discretion, at 4:48 p.m. on March 3, 2009, at the subject property, “[s]aid premises being the Defendant’s dwelling place within the State of New York,” and described Simone Cohen as above. The process server further averred that on March 4, 2009, he mailed those documents to Avi Cohen at the address of the subject property “by depositing a true copy of the same in a postpaid, properly addressed envelope in a[n] official depository under the exclusive care and custody of the United States post office.” Two additional affidavits of service recited that on March 4, 2009, copies of the summons were mailed to each defendant at the subject property.

Contrary to the determination of the Supreme Court, the defendants’ submissions failed to rebut the affidavit of service, since they stated only that Simone Cohen could not have been present at the time of the alleged service since she picked up her children from school every Tuesday and that she could not have understood or answered the process server’s questions or understood the import of the legal papers since she was not proficient in English. The defendants’ conclusory and unsubstantiated submissions did not rebut the sworn allegation that a person fitting the physical description of Simone Cohen was present at the residence at the time and accepted service … . Moreover, Avi Cohen did not deny that he received the papers in the mail and thus did not overcome the inference of proper mailing that arose from the affidavit of service … . Nationstar Mtge., LLC v Cohen, 2020 NY Slip Op 04312, Second Dept 7-29-20

July 29, 2020

Attorneys, Civil Procedure, Family Law

ABSENT PROOF OF SERVICE OF THE SUPPORT MAGISTRATE’S ORDER ON FATHER OR FATHER’S COUNSEL, THE TIME FOR FILING OBJECTIONS TO THE ORDER NEVER BEGAN RUNNING (SECOND DEPT).

The Second Department, reversing Family Court, determined the time for filing objections to the order of the Support Magistrate never started to run because there was no evidence the order was served or mailed, notwithstanding father’s possession of the order:

Pursuant to Family Court Act § 439(e), objections to an order of a Support Magistrate must be filed within 30 days after the date on which the order is provided to the objecting party in court or by personal service, or within 35 days after the date in which the order is mailed to the objecting party … . When a party is represented by counsel, the 35-day time requirement does not begin to run until the final order is mailed to counsel … . Here, the father and the father’s prior counsel indicated that neither of them received the Support Magistrate’s order by either personal service or mail. In addition, there is no evidence in the record demonstrating that the Support Magistrate’s order was mailed or personally served on the father’s counsel. Since there is no evidence in the record indicating that the Support Magistrate’s order was personally served or mailed to the father’s counsel … , the time in which the father was required to file his objections never began to run … . Contrary to the Family Court’s determination, the father’s actual possession of the Support Magistrate’s order, which prior counsel indicated was obtained from the Family Court record room, is not dispositive, as the time limitations of Family Court Act § 439(e) do not begin to run until service is effectuated in accordance therewith … . Hughes v Lugo, 2020 NY Slip Op 04308, Second Dept 7-29-20

July 29, 2020

Family Law

MOTHER, WHO OPPOSES VACCINATING THE CHILD, SHOULD NOT HAVE BEEN AWARDED MEDICAL DECISION-MAKING AUTHORITY (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined mother, who opposes vaccination of the child, should not have been awarded medical decision-making authority:

Here, the child, by his attorney … , asserts that the mother should not have medical decision-making authority over him. The mother opposes vaccinating the child. However, at the hearing, the father testified that he would innoculate the child for diphtheria, tetanus, and pertussis, and measles, mumps, and rubella, expressed concern that the child could become infected and young and elderly members of his family were at risk due to the child’s lack of immunization against “highly contagious preventable diseases,” and further noted that his younger child had received a “full set” of vaccinations. The forensic evaluator recommended that the father should be awarded medical decision-making authority due to his position on vaccinations which was safer for the child, a position which was entitled to some weight … . Under the circumstances, the determination of the Family Court to award the mother medical decision-making authority did not have a sound an substantial basis in the record, and the father should have been awarded medical decision-making authority … . Matter of Ednie v Haniquet, 2020 NY Slip Op 04305, Second Dept 7-29-20

July 29, 2020

Administrative Law, Evidence, Vehicle and Traffic Law

THE FINDING THAT PETITIONER VIOLATED VEHICLE AND TRAFFIC LAW 1180 (d) (SPEEDING) WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE POLICE OFFICER DESCRIBED AN INCIDENT ON A DIFFERENT DATE AT THE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrative finding that petitioner violated Vehicle and Traffic Law section 1180 (d) (speeding) was not supported by substantial evidence because the police officer described an incident on a different date at the hearing:

At the hearing, the police officer, who issued the summons to the petitioner, testified about events which occurred on March 18, 2016, which was not the date that the alleged offense occurred according to the summons issued to the petitioner. While the substantial evidence standard “demands only that a given inference is reasonable and plausible, not necessarily the most probable'” … , here, there was no testimony or evidence provided to demonstrate that the petitioner operated his vehicle in violation of Vehicle and Traffic Law § 1180(d) on March 8, 2016. Given the discrepancy between the date of the offense as set forth in the summons and the testimony of the officer, relying on his notes which also referred to March 18, 2016, the record does not demonstrate that the ALJ was presented with substantial evidence that the petitioner violated Vehicle and Traffic Law § 1180(d) on March 8, 2016 … . Matter of Batra v Egan, 2020 NY Slip Op 04300, Second Dept 7-29-20

July 29, 2020

Evidence, Negligence

ALTHOUGH THERE WAS A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL, THERE WERE QUESTIONS OF FACT WHETHER THE ICE FORMED AFTER A PRIOR STORM AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE SIDEWALK; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although there was a storm in progress at the time of the slip and fall, there were questions of fact whether ice had formed from a storm two days before and whether the defendants had constructive notice of the condition:

Under the storm in progress rule, “[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Here, in support of their summary judgment motion, the defendants submitted climatological data which showed that on January 26, 2015, trace amounts of snow fell in the morning, and that the snow began to increase in intensity at about the time of the accident and continued into the next day. That same data, however, also showed that 3.6 inches of snow fell on January 24, 2015, and that 2 inches of snow depth remained on January 26, 2015. Although the defendants established that a snowstorm was in progress at the time of the plaintiff’s fall, the defendants failed to establish that the plaintiff’s fall was a result of an icy condition which developed as a result of the snowfall on January 26, and not that of January 24 … . Notably, while the defendants provided evidence of their general snow removal practices, they provided no evidence regarding any specific removal efforts following the January 24 storm, including on January 26 prior to the plaintiff’s fall. Thus, the defendants failed to establish that the plaintiff slipped and fell on an icy condition that was a product of the storm in progress, or that they lacked constructive notice of a preexisting condition … . Kearse v 40 Wall St. Holdings Corp., 2020 NY Slip Op 04296, Second Dept 7-29-20

July 29, 2020

Civil Procedure, Evidence, Negligence

PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted. The court noted that evidence of a plaintiff’s comparative negligence, although no longer an impediment to summary judgment, can be considered by the court where the plaintiff moves to dismiss a comparative-negligence affirmative defense:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, her own affidavit, which demonstrated that she was walking within a crosswalk with the pedestrian signal in her favor when Martinez, who was attempting to make a left turn, failed to yield the right-of-way and struck her … . The plaintiff’s affidavit was also sufficient to establish, prima facie, that she was not at fault in the happening of the accident, as it demonstrated that she exercised due to care by confirming that she had the pedestrian signal in her favor and by looking for oncoming traffic in all directions before entering the crosswalk and that the collision occurred so suddenly that she could not avoid it … . Hai Ying Xiao v Martinez, 2020 NY Slip Op 04295, Second Dept 7-29-20

Similar issues and result in Maliakel v Morio, 2020 NY Slip Op 04298, Second Dept 7-29-20

July 29, 2020

Civil Procedure, Foreclosure

ALTHOUGH IT IS POSSIBLE TO ENTER AN ‘INFORMAL APPEARANCE’ IN AN ACTION WHICH WILL AVOID A DEFAULT, THE APPEARANCE MUST BE MADE WITHIN THE STATUTORY TIME LIMITS; THE PLAINTIFF BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department affirmed the default judgment granted to plaintiff bank in this foreclosure action. The court rejected the argument that defendant (Hall) had entered a valid “Informal appearance:”

It is true that “[i]n addition to the formal appearances listed in CPLR 320(a), the law continues to recognize the so-called informal’ appearance” … . “It comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits” … .

Although “an informal appearance can prevent a finding that the defendant is in default, thereby precluding entry of a default judgment” … , this is only true when the participation constituting the informal appearance occurred within the time limitations imposed for making a formal appearance … . Indeed, even service of a formal “notice of appearance will not protect the defendant from entry of a default judgment if, after service of the complaint, the defendant does not timely make a CPLR 3211 motion or serve an answer” … . Accordingly, an informal appearance, without more, does not somehow absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211 … . Deutsche Bank Natl. Trust Co. v Hall, 2020 NY Slip Op 04292, Second Dept 7-29-20

July 29, 2020

Civil Rights Law

A VIOLATION OF THE RIGHT OF PRIVACY CAUSE OF ACTION ALLEGING USE OF A PERSON’S IMAGE IN ADVERTISING IS PURELY STATUTORY (CIVIL RIGHTS LAW 50 AND 51); THERE IS NO COMMON-LAW RIGHT OF PUBLICITY IN NEW YORK (SECOND DEPT).

The Second Department determined the complaint stated causes of action for violation of the right of privacy by the alleged use of plaintiff’s likeness in an advertising campaign. The Second Department, disagreeing with Supreme Court, held the cause of action alleging a purported common-law fight of publicity should have been dismissed because the right of privacy is exclusively statutory in New York:

We agree with the Supreme Court’s determination denying those branches of the defendant’s motion which were to dismiss the first and second causes of action, alleging violations of the plaintiff’s right of privacy and the related right of publicity, respectively, under Civil Rights Law §§ 50 and 51. Civil Rights Law § 50 prohibits “[a] person, firm or corporation” from using “for advertising purposes . . . the name, portrait or picture of any living person without having first obtained the written consent of such person.” “A name, portrait or picture is used for advertising purposes’ if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service” … . Here, accepting the plaintiff’s allegations as true, which we must … , whether or not the subject image constituted a work of art, the first and second causes of action state cognizable causes of action under Civil Rights Law §§ 50 and 51 as they allege, inter alia, that the defendant used the plaintiff’s portrait, image, and likeness as Phantom Knoet in an advertising campaign, which included promotional merchandise to promote the defendant’s financial services and products … .

However, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the third cause of action, alleging a violation of a purported common-law right of publicity based on the defendant’s misappropriation of the plaintiff’s property right in her image and that of her persona Phantom Knoet. As the right of publicity is encompassed under the Civil Rights Law as an aspect of the right of privacy, which is exclusively statutory, there is no common-law right of publicity … . Darden v OneUnited Bank, 2020 NY Slip Op 04291, Second Dept 6-29-20

July 29, 2020

Civil Procedure

THE CERTIFICATION ORDER DIRECTING PLAINTIFF TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WAS NOT A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AND THE CROSS-MOTION TO EXTEND THE TIME FOR FILING A NOTE OF ISSUE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have been dismissed for failure to file a note of issue because a valid 90-day notice had not been issued or served. The certification order issued by Supreme Court directing plaintiff to file a note of issue within 90 days did not meet the criteria for a 90-day notice required by CPLR 3216:

… [T]he record shows that neither the Supreme Court nor any of the defendants served, pursuant to CPLR 3216, a 90-day demand to file a note of issue on the plaintiff. … [A]lthough the court issued a certification order … directing the plaintiff to file the note of issue within 90 days of the order, it did not constitute a valid 90-day demand because it did not contain any language warning that the plaintiff’s failure to file the note of issue within 90 days would result in dismissal pursuant to CPLR 3216 … . Additionally, the … certification order did not set forth specific conduct by the plaintiff constituting neglect … . Since the plaintiff was never served with a 90-day demand, the court should not have dismissed the complaint due to the plaintiff’s failure to file the note of issue … .

… [T]he Supreme Court could not rely upon CPLR 3126 as a basis upon which to dismiss the complaint as the plaintiff’s failure to timely file the note of issue or to move to extend the time to file the note of issue did not constitute disobedience of an “order for disclosure” (CPLR 3126 … ).

We also disagree with the Supreme Court’s determination denying the plaintiff’s cross motion, pursuant to CPLR 2004, to extend her time to file the note of issue. Discovery is complete and the defendants failed to establish that they were prejudiced by the plaintiff’s failure to timely file the note of issue and her delay in moving for an extension of time to do so … . Tolkoff v Goldstein, 2020 NY Slip Op 04341, Second Dept 7-29-20

July 29, 2020

Tag Archive for: Second Department

HEARSAY DID NOT PROVE BANK HAD STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

ABSENT PROOF OF SERVICE OF THE SUPPORT MAGISTRATE’S ORDER ON FATHER OR FATHER’S COUNSEL, THE TIME FOR FILING OBJECTIONS TO THE ORDER NEVER BEGAN RUNNING (SECOND DEPT).

MOTHER, WHO OPPOSES VACCINATING THE CHILD, SHOULD NOT HAVE BEEN AWARDED MEDICAL DECISION-MAKING AUTHORITY (SECOND DEPT).

THE FINDING THAT PETITIONER VIOLATED VEHICLE AND TRAFFIC LAW 1180 (d) (SPEEDING) WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE POLICE OFFICER DESCRIBED AN INCIDENT ON A DIFFERENT DATE AT THE HEARING (SECOND DEPT).

ALTHOUGH IT IS POSSIBLE TO ENTER AN ‘INFORMAL APPEARANCE’ IN AN ACTION WHICH WILL AVOID A DEFAULT, THE APPEARANCE MUST BE MADE WITHIN THE STATUTORY TIME LIMITS; THE PLAINTIFF BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

A VIOLATION OF THE RIGHT OF PRIVACY CAUSE OF ACTION ALLEGING USE OF A PERSON’S IMAGE IN ADVERTISING IS PURELY STATUTORY (CIVIL RIGHTS LAW 50 AND 51); THERE IS NO COMMON-LAW RIGHT OF PUBLICITY IN NEW YORK (SECOND DEPT).

THE CERTIFICATION ORDER DIRECTING PLAINTIFF TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WAS NOT A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AND THE CROSS-MOTION TO EXTEND THE TIME FOR FILING A NOTE OF ISSUE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

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