You are here: / Second Department

Tag Archive for: Second Department

PETITION SIGNATURES SHOULD NOT HAVE BEEN INVALIDATED ON THE GROUND THAT A VOTER’S ADDRESS ON THE PETITION WAS DIFFERENT FROM THAT VOTER’S ADDRESS ON THE VOTER REGISTRATION RECORD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petition signatures should not have been invalidated because a voter’s address on the petition differed from the address on a voter’s registration:

Contrary to the Supreme Court’s determination, “[t]hat the address appearing on a voter’s registration record differs from the address provided by that voter on the petition he or she signed does not provide a basis for invalidating that voter’s signature” … . It is undisputed that of the 15 voters whose signatures were invalidated on that ground, the respective addresses provided on the designating petition by 11 of those voters, and the addresses listed on their respective registration cards, though different, were all located within the 23rd Senatorial District. It is also undisputed that the signatures on the registration cards of those 11 voters matched their respective signatures on the designating petition. Matter of Robleto v Gowda, 2020 NY Slip Op 02745, Second Dept 5-7-20

 

,

THE PETITION SIGNATURES WERE GATHERED BEFORE THE DEADLINE SET BY THE COVID-19-RELATED EXECUTIVE ORDER BUT THE SIGNATURES WERE WITNESSED AFTER THE DEADLINE; THE SIGNATURES SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the witnessing of petition signatures need not be done prior to the deadline for gathering the signatures:

These are unusual times occasioned by the onset of the COVID-19 virus. The State has undertaken various measures to protect the health and safety of its residents by limiting the face-to-face contact of persons and thereby minimizing the extent of human transmission of the virus. Some of the State’s measures are set forth in Executive Orders of the Governor, including, as relevant here, Executive Order No. 202.2. Executive Order No. 202.2, dated March 14, 2020, modified article 6 of the Election Law to reduce the number of petition signatures required for placing candidates’ names on ballots, and to suspend the “gathering of signatures” after 5:00 p.m. on March 17, 2020. The Executive Order is consistent with the State’s policy of limiting social and professional interactions and community contact transmissions of COVID-19 (see Executive Order 202.2). …

The language of the Executive Order plainly directs that only the “gathering of signatures” was subject to the deadline of 5:00 p.m. on March 17, 2020. The signatures contained in the appellant’s designating petition were all “gathered” prior to that deadline. The language of the Executive Order provides no truncated deadline for the witnessing of those signatures. Indeed, since the witnessing of signatures is a ministerial task unrelated to the face-to-face interactions that Executive Order No. 202.2 was issued to minimize, there would be no reason for the Governor to have intended, or for the Executive Order itself to provide, that the witnessing of signatures also be suspended as of 5:00 p.m. on March 17, 2020.

Thus, we disagree with the Supreme Court’s determination granting the petition, inter alia, to invalidate the appellant’s designating petition on the ground that the executions of the Statement of Witness on March 19, 2020, violated the signature gathering deadline of Executive Order No. 202.2 … . Matter of Parascando v Monheit, 2020 NY Slip Op 02744, Second Dept 5-7-20

 

, ,

THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 13O4 AND A CONDITION PRECEDENT IN THE MORTGAGE IN THIS FORECLOSURE ACTION; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and a condition precedent in the mortgage and therefore was not entitled to summary judgment in this foreclosure action:

Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 … . Contrary to the plaintiff’s contention, its submission of an affidavit of an employee of the loan servicer was not sufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304. The affiant did not aver that he had personal knowledge of the purported mailings, that he was familiar with the mailing practices and procedures of the plaintiff, which allegedly sent the notice, or that the plaintiff’s records had been incorporated into the records of the loan servicer and were routinely relied upon by the loan servicer in its business … . Further, the plaintiff’s submission of an affidavit of its own employee was insufficient to establish the plaintiff’s strict compliance with RPAPL 1304, since that employee had no personal knowledge of the purported mailings, and his unsubstantiated and conclusory statements failed to establish that the notice was mailed to the defendant not only by certified or registered mail, but also by first-class mail … . Although the plaintiff submitted tracking information from the United States Postal Service for certified mailings of the notice, the redacted proof of first-class mailing did not contain any information linking a first-class mailing to the RPAPL 1304 notice, and thus, failed to establish that the notice was mailed by first-class mail … . Likewise, the plaintiff’s submission of a “Proof of Filing” statement pursuant to RPAPL 1306 contained no information indicating that the mailing was done by both registered or certified mail and first-class mail as required by RPAPL 1304 … .

The plaintiff similarly failed to establish, prima facie, that it mailed a notice of default to the defendant by first-class mail as required by the terms of the mortgage as a condition precedent to acceleration of the loan … . JPMorgan Chase Bank, N.A. v Nellis, 2020 NY Slip Op 02621, Second Dept 5-6-20

Similar issues and result in Deutsche Bank Natl. Trust Co. v Nelson, 2020 NY Slip Op 02604, Second Dept 5-6-20

 

,

THE PEOPLE DID NOT DEMONSTRATE THAT THE ANALYST WHO TESTIFIED ABOUT THE GENERATION OF THE DNA PROFILE HAD FIRST-HAND KNOWLEDGE OF THE PROCEDURE USED OR INDEPENDENTLY ANALYZED THE RAW DATA; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defendant was deprived of the opportunity to cross-examine a witness who had first-hand knowledge of the generation of the DNA profile:

When confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data” … . As the defendant contends, the People failed to establish that the analyst who testified in this case performed such a role in the testing or analysis of the testimonial DNA evidence introduced against him at trial … . Since the error was not harmless, the defendant is entitled to a new trial … . People v Butler, 2020 NY Slip Op 02676, Second Dept 5-6-20

 

,

THE SUPPORT MAGISTRATE SHOULD HAVE INQUIRED FURTHER WHEN FATHER SAID HE WISHED TO HAVE AN ATTORNEY BUT COULD NOT AFFORD ONE; THE SUPPORT MAGISTRATE TOLD FATHER HE WAS NOT ENTITLED TO APPOINTED COUNSEL BECAUSE HE WAS WORKING; FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate should have inquired further when father said he wanted an attorney but could not afford one. The Support Magistrate told father he was not entitled to an appointed attorney because he was employed:

The Support Magistrate should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses because the father expressed a desire to have an attorney appointed … . Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel … . Here, despite the father’s statements at the pretrial appearance that he could not afford to hire private counsel and would like to have an attorney appointed, the Support Magistrate adjourned the matter for a hearing. Under these circumstances, the father was deprived of his right to counsel and reversal is required … . Matter of Goodine v Evans, 2020 NY Slip Op 02668, Second Dept 5-6-20

 

,

DEFENDANT DID NOT OFFER PROOF OF WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON WATER WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendant failed to demonstrate it did not have constructive notice of the water on the floor because it did not offer any proof of when the area had last been cleaned or inspected:

“A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “A defendant has constructive notice of a dangerous condition when the dangerous condition is visible and apparent, and existed for a sufficient length of time before the accident that [it] could have been discovered and corrected” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendant failed to meet its initial burden as the movant to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall, because the defendant did not proffer any evidence as to when the subject area was last cleaned or inspected … . Merchant v New York City Tr. Auth., 2020 NY Slip Op 02666, Second Dept 5-6-20

 

,

ALTHOUGH THE CAR DEALER, DUE TO AN ERROR, DID NOT SUBMIT THE CORRECT REGISTRATION DOCUMENTS TO THE DEPARTMENT OF MOTOR VEHICLES WITHIN THE MANDATED FIVE-DAY PERIOD, THAT DEFECT DID NOT INVALIDATE THE TRANSFER OF OWNERSHIP OF THE CAR TO THE DRIVER INVOLVED IN THE ACCIDENT; THE DEALER WAS NOT THE OWNER OF THE CAR AT THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dealer (Zaki’s) which sold a car to the hit-and-run driver (Marcial) in this pedestrian traffic accident case demonstrated it was not the owner of the car at the time of the accident. The transaction was complete and the driver was insured. When the dealer submitted the title paperwork to the Department of Motor Vehicles (DMV) a mistake was discovered requiring that the dealer submit corrected paperwork. Therefore, technically, the dealer was not in compliance with requirement that the title paperwork be submitted to the DMV within five days. That technical defect did not affect the validity of the transfer of ownership to the driver:

Vehicle and Traffic Law § 420-a authorizes qualified automobile dealers to issue a temporary vehicle registration to a person to whom the dealer has sold or transferred a vehicle … . The temporary registration is valid for a period of 30 days after the date of issuance (see Vehicle and Traffic Law § 420-a[1]). Before issuing the temporary registration, the dealer must comply with certain statutory requirements, and, upon issuing the temporary registration, the dealer must send the permanent vehicle registration application to the commissioner of the DMV within five calendar days … . A dealer who fails to comply with the statutory requirements regarding vehicle registration procedures may be estopped from denying ownership of the vehicle and be held liable as if it were, in fact, the owner of the vehicle … .

It is not disputed that Zaki’s complied with all of the statutory requirements before issuing the temporary registration, and that Marcial had obtained insurance on the vehicle before being issued the temporary registration and taking the vehicle into his possession … . Further, Zaki’s evidence established that Zaki’s was diligent in its efforts to comply with the statutory requirements concerning the permanent registration, and that its failure to do so within the statutory five days was because of an error in the title that required correction, and not any negligence by Zaki’s in its statutory obligations … . In addition, there is no evidence that Zaki’s engaged in any act whereby it held itself out as the owner of the vehicle on the date of the accident or that it gained any financial advantage by failing to submit the permanent registration application within the five days following the issuance of the temporary registration … . Gonzalez v Zaki’s Auto Sales Corp., 2020 NY Slip Op 02644 Second Dept 5-6-20

 

, ,

GENERAL OBLIGATIONS LAW 5-703 GIVES AN EQUITY COURT THE POWER TO ENFORCE AN ORAL CONTRACT FOR THE PURCHASE OF REAL PROPERTY; THE CAUSES OF ACTION SEEKING TO ENFORCE AN ALLEGED ORAL AGREEMENT GIVING PLAINTIFFS THE OPTION TO PURCHASE THE PROPERTY UPON THE OWNER’S DEATH SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, held that the general statute of frauds statute, General Obligations Law (GOL) 5-701, did not apply to the alleged oral agreement to give plaintiffs the option to buy the decedent’s property upon her death. Rather GOL 5-703, which carves out an exception for specific performance of a real estate contract, applied. Decedent owned a two-unit property and plaintiffs rented the second unit. Plaintiffs alleged decedent asked them to care for her in exchange for the option to purchase. Plaintiffs did in fact care for decedent until her death. The executor refused to honor the alleged oral agreement and plaintiffs sued:

General Obligations Law § 5-701, the general statute of frauds provision outlining which agreements must be in writing, contains no explicit statutory authority for a court, exercising its equitable powers, to grant specific performance of an oral agreement insufficiently memorialized in writing so as to satisfy the statute of frauds. Notably, in Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group (93 NY2d 229, 234 n 1), the Court of Appeals clarified that New York has not adopted a judicially created common-law exception to General Obligations Law § 5-701, which would permit a court to direct specific performance of an oral agreement in cases of part performance.

By contrast, General Obligations Law § 5-703, the more specific statute of frauds provision relating to contracts concerning real property, contains an explicit carve-out, which provides that “[n]othing contained in [General Obligations Law § 5-703] abridges the powers of courts of equity to compel specific performance of agreements in cases of part performance”… .

Here, the plaintiffs’ allegations that they entered into an oral option agreement … to purchase the subject property from her estate describe, in sum and substance, “[a] contract to devise real property . . . or any interest therein or right with reference thereto” … , and therefore, this action is governed by General Obligations Law § 5-703 … . Accordingly, since the action is governed by General Obligations Law § 5-703, the plaintiffs are not foreclosed, as a matter of law, from obtaining the remedy of specific performance … . Korman v Corbett, 2020 NY Slip Op 02637, Second Dept 5-6-20

 

, , ,

EXTRINSIC COLLATERAL DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN ADMITTED TO IMPEACH DEFENDANT DOCTOR’S CREDIBILITY IN THIS MEDICAL MALPRACTICE TRIAL; DEFENDANT’S MOTION TO SET ASIDE THE $400,000 VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined the defendant doctor’s motion to set aside the plaintiff’s $400,000 verdict should have been granted. The trial court should not have allowed extrinsic documentary evidence on collateral matters to impeach defendant’s credibility:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise”  … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court should not have permitted the plaintiff to introduce extrinsic documentary evidence concerning collateral matters solely for the purpose of impeaching the defendant’s credibility … . In view of the importance of the defendant’s testimony and the emphasis given to the improperly admitted credibility evidence by the plaintiff’s counsel during summation, the errors were sufficiently prejudicial to warrant a new trial … . Rudle v Shifrin, 2020 NY Slip Op 02487, Second Dept 4-29-20

 

,

DEFECT WHICH CAUSED PLAINTIFF TO SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the defect which caused plaintiff’s slip and fall was trivial as a matter of law:

The plaintiff testified that he stopped by one of the benches and when he started to walk away, “[his] foot got caught under the bench leg.” The plaintiff further testified that he returned to the site of the accident later that day and observed that the bench leg, which had allegedly caught his foot, was bent and protruding outward approximately two inches into the pedestrian walkway. The plaintiff, who had frequented that mall more than 100 times and had previously been to the area of the mall where the accident had occurred, had never noticed the bent bench leg. No one, including the plaintiff, had ever complained about the bent bench leg to the defendants. Nor had any prior accidents involving the bent bench leg been reported to the defendants. The plaintiff’s engineering expert opined that the defendants were negligent in permitting the bench leg to protrude into the pedestrian walkway so as to create a tripping hazard. * * *

“[A] property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes or trip” … . Photographs which fairly and accurately represent the accident site may be used to establish whether a defect is trivial and not actionable … .

Here, the evidence that the defendants submitted in support of their motion, including several photographs of the alleged defect, established prima facie that, as a matter of law, under all the circumstances, including the lighting conditions at the time of the accident, the plaintiff’s unobstructed view of the alleged defect, and the condition and location of the bench leg, the alleged defect was trivial and, therefore, not actionable … . Reich v Alexander’s, Inc., 2020 NY Slip Op 02486, Second Dept 4-29-20

 

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