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DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly tripped on an uneven sewer grate in a parking lot. The evidence did not demonstrate, prima facie, that the defect was trivial. Therefore the burden of proof on the summary judgment motion never shifted to plaintiff:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or per se rule that the condition must be of a certain height or depth in order to be actionable … . Physically small defects may be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . Bishop v Pennsylvania Ave. Mgt., LLC, 2020 NY Slip Op 02756, Second Dept 5-13-20

 

WHETHER THE REQUESTED DOCUMENTS HAVE BEEN REASONABLY DESCRIBED IS DISTINCT FROM WHETHER A SEARCH FOR THE DOCUMENTS WOULD BE UNDULY BURDENSOME; THE DOCUMENTS WERE SUFFICIENTLY DESCRIBED AND THE PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; MATTER REMITTED FOR A DETERMINATION WHETHER A SEARCH WOULD BE UNDULY BURDENSOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the FOIL request for NYC Department of Education (DOC) forms used by employees to request absences for religious observances should not have been denied on the ground the documents were not reasonably described. The DOC conceded that it can locate the records, which are kept at the 1700 individual schools. The matter was remitted to address whether it would be unduly burdensome to search for the documents, a distinct ground Supreme Court did not address:

We disagree with the Supreme Court’s determination that it was proper for the respondent to deny the petitioner’s request on the ground that the requested records were not reasonably described. The requirement that a FOIL request reasonably describe the records sought is to enable the agency to locate the records in question … . In order for an agency to deny a FOIL request for overbreadth, the agency must demonstrate that the description is ” insufficient for the purposes of locating and identifying the documents sought'” … . Where the request is sufficiently detailed to enable the agency to locate the records in question, the agency cannot complain about the nomenclature of the request as described … . …

The respondent has conflated the requirement of reasonable description with the related, but separate, consideration as to whether it would be unduly burdensome for the respondent to comply with the petitioner’s request. While the respondent’s submissions demonstrate that it knows where the requested records are located, the respondent also maintains that it would be burdensome for it to conduct a search of the personnel files at each of its 1,700 schools to produce the requested records. However … Public Officers Law § 89(3)(a) provides that the “agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article.” The issue of burden and/or whether the respondent is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and we cannot resolve it on this record.  Matter of Jewish Press, Inc. v New York City Dept. of Educ., 2020 NY Slip Op 02785, Second Dept 5-13-20

 

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ALTHOUGH THE PARTY TWICE FILED FOR BANKRUPTCY WITHOUT LISTING THE MEDICAL MALPRACTICE ACTION AS AN ASSET, THE BANKRUPTCY PROCEEDING WAS SUBSEQUENTLY REOPENED AND THE ACTION WAS ADDED AS AN ASSET; AT THAT POINT THE BANKRUPTCY TRUSTEE BECAME THE PLAINTIFF IN THE MEDICAL MALPRACTICE ACTION AND THE DOCTRINE OF JUDICIAL ESTOPPEL, BASED UPON THE PARTY’S INITIAL FAILURE TO LIST THE ACTION AS AN ASSET, DID NOT APPLY TO THE TRUSTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to dismiss the medical malpractice complaint on judicial estoppel grounds should not have been granted. Vormnadiryan commenced a medical malpractice action in 2006. In two bankruptcy proceedings in 2008 and 2016 the medical malpractice action was not listed as an asset by Vormnadiryan. In 2017 Vormnadiryan opened the 2008 bankruptcy action and the medical malpractice action was added as an asset, making the bankruptcy trustee the plaintiff in that action. The Second Department determined Vormandiryan’s initial failure to list the malpractice action as an asset did not subject the bankruptcy trustee, as the plaintiff in the malpractice action, to the judicial estoppel doctrine:

“The integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims. Thus, the doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” … . “Because the doctrine is primarily concerned with protecting the judicial process, relief is granted only when the risk of inconsistent results with its impact on judicial integrity is certain” … . …

Here, the 2008 bankruptcy proceeding was reopened by the Bankruptcy Court so that the 2006 medical malpractice action could be identified as an asset of the bankruptcy estate. Therefore, judicial estoppel cannot be predicated on Vormnadiryan’s failure to list the action as an asset when she originally filed the 2008 bankruptcy petition … . Further, once a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (see 11 USC § 541[a][1] … ). The trustee in bankruptcy, as representative of the estate, “has capacity to sue and be sued” … . Pereira v Meisenberg, 2020 NY Slip Op 02815, Second Dept 5-13-20

 

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BECAUSE THE HOLDER OF A FIRST MORTGAGE WAS A DEFENDANT IN THE TAX FORECLOSURE PROCEEDINGS, THE MORTGAGE HOLDER DID NOT NEED TO FILE ITS OWN FORECLOSURE ACTION TO ENFORCE ITS LIEN ON THE SURPLUS TAX-FORECLOSURE-SALE PROCEEDS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that HPD,  the holder of a first mortgage on property which was the subject of a tax foreclosure, was entitled to the surplus funds from the tax foreclosure sale. The issue was whether HPD’s action seeking the surplus was time-barred because it didn’t enforce the lien on the surplus within six years of the tax foreclosure sale. The Second Department held no further action to enforce the lien was necessary because HPD was a defendant in the tax foreclosure proceedings:

… HPD’s appearance in the tax lien foreclosure action put [the property owner] and anyone else interested in a potential surplus on notice of HPD’s claims. To require HPD to commence a separate foreclosure action, when an action to foreclose the tax lien was already pending, would serve no useful purpose. NYCTL 1997-1 Trust v Stell, 2020 NY Slip Op 02802, Second Dept 5-13-20

 

THE GOVERNOR’S COVID-19-RELATED REDUCTION IN THE REQUIRED NUMBER OF DESIGNATING-PETITION SIGNATURES UNDER THE ELECTION LAW DOES NOT APPLY TO THE REQUIRED NUMBER OF DESIGNATING-PETITION SIGNATURES UNDER THE NEW YORK CITY CHARTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the governor’s covid-19-related reduction in the threshold number of designating-petition signatures required under the Election Law did not apply to the threshold number of signatures required by the New York City Charter:

There is no evidence that the Governor intended to alter the New York City Charter’s threshold of 450 signatures as opposed to the Election Law statutory threshold of 900. Given that the Governor specifically referred to the Election Law threshold as providing the relevant baseline to reduce the number of signatures in Executive Order No. 202.2, to the extent that there may be any conflict by application of a different threshold baseline set forth in the New York City Charter, Executive Order (Cuomo) No. 202.3 (9 NYCRR 8.202.3) would warrant suspension of the contrary New York City Charter provision. Matter of Council v Zapata, 2020 NY Slip Op 02750, Second Dept 5-11-20

 

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

 

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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

 

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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

 

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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

 

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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

 

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