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PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF 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 the plaintiff’s (PennyMac’s) motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not present sufficient proof of compliance with the notice requirements of RPAPL 1304:

… [A]lthough Somarriba and Carras-Gomez “stated in [their] affidavit[s] that the RPAPL 1304 notices were mailed by certified and regular first-class mail, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened” … . Instead, the plaintiff submitted a certificate of bulk mailing, which did not identify any particular mailing, and two internal reports generated by the plaintiff, which appear to demonstrate that some unidentified pieces of mail were sent to the borrower’s address … . Additionally, no foundation was laid for the admission of these business records, as neither Somarriba nor Carras-Gomez attested that they had personal knowledge of the plaintiff’s business practices and procedures, or that the plaintiff’s records were incorporated into PennyMac’s own records or routinely relied upon by PennyMac in its business … . Finally, the plaintiff failed, alternatively, to provide proof of actual mailing of the RPAPL 1304 notice, to provide 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” … . Neither Somarriba nor Carras-Gomez averred that they had personal knowledge of any such standard office mailing procedure of the plaintiff. PennyMac Corp. v Khan, 2019 NY Slip Op 09278, Second Dept 12-24-19

 

COURT SHOULD NOT HAVE AWARDED PLAINTIFF WIFE $25,000 AS AN INTEREST IN HER HUSBAND’S MBA DEGREE; MARITAL ASSETS WERE USED TO PROCURE THE DEGREE AND THE COST OF THE DEGREE IS NOT A PROPER BASIS FOR SUCH AN AWARD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff wife in this divorce action should not have been awarded $25,000 for her interest in her husband’s MBA degree:

At the time that this action was commenced, an academic degree earned during a marriage constituted marital property subject to equitable distribution ( … cf. Domestic Relations Law § 236[B][5][d][7]). The value of a degree is measured by the present value of the enhanced earning capacity which it affords the holder … . The nontitled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the nontitled spouse made a substantial contribution to the acquisition of the degree … . Here, the Supreme Court awarded the plaintiff $25,000, not based on the value of the defendant’s enhanced earning capacity, but rather on its determination of the cost of the acquisition of the MBA degree. The utilization of marital funds for the acquisition of the defendant’s MBA degree was a choice made by the parties during the course of the marriage that should not be second-guessed once the marriage has ended … . Furthermore, the plaintiff failed to establish the actual value of the defendant’s enhanced earning capacity … , and the court declined to award the defendant any distribution of the plaintiff’s master’s degree, which was also earned during the marriage. Accordingly, we modify the judgment by deleting the provision awarding the plaintiff $25,000 as and for her interest in the defendant’s MBA degree. Ospina-Cherner v Cherner, 2019 NY Slip Op 09276, Second Dept 12-24-19

 

FATHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for sole custody should not have been granted absent a full hearing:

By “Agreed Order in Suit Affecting the Parent-Child Relationship” (hereinafter the Texas custody order) dated October 4, 2016, which was so-ordered by the District Court, Harris County, Texas, the parties agreed to be appointed “Joint Managing Conservators” of their child, and the father was granted the exclusive right to designate the child’s primary residence within Westchester County, New York, or any contiguous county.

Less than two months later, on November 16, 2016, the father filed a petition in the Family Court, Westchester County, to modify the Texas custody order, inter alia, so as to award him sole custody of the child. The mother opposed the petition. Over 21 months, the parties made eight formal appearances in Family Court in connection with the father’s petition. The court never conducted an evidentiary hearing on the father’s petition, with the exception of taking the partial testimony of one nonparty witness. By order dated September 25, 2018, over the mother’s objection and request for an evidentiary hearing, the court, inter alia, granted the father’s petition to the extent of awarding him sole legal custody of the child. The mother appeals. We reverse.

Custody determinations should ” [g]enerally’ be made only after a full and plenary hearing and inquiry'”  … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . Here, the record does not demonstrate the absence of unresolved factual issues so as to render a custody hearing unnecessary … . Matter of Salvi v Salvi, 2019 NY Slip Op 09272, Second Dept 12-24-19

 

MOTION FOR A DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE THERE WAS NO DEMAND FOR DECLARATORY RELIEF IN THE PLEADINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a declaratory judgment should not have been granted because declaratory relief was not in the pleadings:

… Supreme Court should have denied the … motion for a declaration that the contract and its amendments are null and void, because that declaratory relief was not demanded in the pleadings filed in this proceeding (see CPLR 3017[b] …). Matter of Mount Olive Baptist Church of Manhasset, 2019 NY Slip Op 09270, Second Dept 12-24-19

 

REMOVAL OF THE CHILD FROM MOTHER’S CARE WAS NOT WARRANTED, NO SHOWING OF AN IMMINENT THREAT TO THE CHILD’S LIFE OR HEALTH (SECOND DEPT).

The Second Department, reversing Family Court, determined the child should not have been removed for the mother’s care because there was not showing of an imminent threat to the child’s life or health:

Upon a hearing pursuant to Family Court Act § 1027, “temporary removal is only authorized where the court finds it necessary to avoid imminent risk to the child’s life or health'” … . “In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'”  … . “Imminent danger, however, must be near or impending, not merely possible” … .

Here, the petitioner failed to establish that the child would be subjected to imminent risk if he were not removed from the mother’s custody pending the outcome of the neglect proceeding … . The Family Court’s concerns about, inter alia, whether the mother would keep in contact with the petitioner or return to court for continued proceedings did not amount to an imminent risk to the child’s life or health that could not be mitigated by reasonable efforts to avoid removal. Matter of Cameron L. (Ashley L.), 2019 NY Slip Op 09268, Second Dept 12-24-19

 

MOTION TO AMEND THE BILL OF PARTICULARS MADE AFTER THE NOTE OF ISSUE WAS FILED SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A GOOD EXCUSE FOR THE DELAY; THE MOTION HAD MERIT, DID NOT PRESENT ANY NEW THEORIES AND SOUGHT TO NARROW THE ISSUES FOR TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to amend the bill of particulars should have been granted, even though the motion was made after the note of issue was filed and there was no good excuse for the delay:

… “[L]eave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” … . Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine … .

Here, despite their unreasonable and unexplained delay in seeking leave to amend their bill of particulars and interrogatory responses, the plaintiffs did not seek to assert any new theory of liability, but rather, sought to narrow a theory previously asserted. Specifically, whereas the plaintiffs had previously alleged violation of “all provisions of the [Federal Motor Carrier Safety Regulations] Parts 300 to 399,” their proposed amendment sought to narrow this allegation to specify a violation of 49 CFR 392.2 as a result of a violation of Tuckahoe Village Code § 21-33.1. Since the proposed amendment was meritorious and sought to narrow the issues before the Supreme Court, the court should have granted the plaintiffs’ cross motion for leave to amend their bill of particulars and interrogatory responses as requested … . Cioffi v S.M. Foods, Inc., 2019 NY Slip Op 09252, Second Dept 12-24-19

 

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PLAINTIFF POLICE OFFICER’S MOTION FOR SUMMARY JUDGMENT AGAINST THE DRIVER OF THE TRACTOR TRAILER WHICH STRUCK HIM WHEN HE WAS STANDING IN THE ROADWAY SHOULD HAVE BEEN GRANTED, FREEDOM FROM COMPARATIVE FAULT NO LONGER NEED BE SHOWN; OTHER ISSUES ADDRESSED IN THE DECISION INCLUDE THE EMPLOYER’S LIABILITY, THE TRUCK RENTAL COMPANIES’ LIABILITY, THE EMERGENCY DOCTRINE, WORKERS’ COMPENSATION AND GENERAL MUNICIPAL LAW 205-e (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff police officer was entitled to summary judgment against the driver of the tractor trailer which struck the officer who was standing in the roadway both under a common law negligence theory and under General Municipal Law 205-e. The court dealt with several other issues including: (1) whether a second police officer was engaged in an emergency operation, giving rise to the reckless disregard standard, when he stopped to assist the plaintiff who had made a traffic stop (the answer is no); (2) whether the second officer was liable based upon the position of his car (the answer is no, the car furnished a condition for the accident but was not the cause); (3) whether the injured officer’s recovery was confined to Workers’ Compensation (there is a question of fact whether the injury was “grave”); (4) whether the Graves Amendment protected the truck rental companies (the answer is yes); (5) whether vicarious liability applies to the truck driver’s employer (there is a question of fact on that issue). With respect to the common law negligence and the General Municipal Law 205-e causes of action, the court wrote:

… [T]he plaintiffs were not required to demonstrate that the injured plaintiff was free from comparative negligence in order to obtain summary judgment on the issue of Burke’s [the truck driver’s] liability on the first cause of action [negligence]. * * *

When the light changed, Burke began his left turn onto northbound Midland Avenue. Prior to beginning his turn, Burke was aware that there was a police officer conducting a traffic stop on foot and a police car parked on the northbound side of Midland Avenue. Although Burke believed he could make the turn safely, the rear of the trailer hit the injured plaintiff. * * *

The plaintiffs also established … Burke’s liability as to … a violation of General Municipal Law § 205-e. … [T]hat statute permits a police officer to bring a tort claim for injuries sustained “while in the discharge or performance at any time or place of any duty imposed by . . . superior officer[s]” where such injuries occur “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments” … . In order to recover under the statute, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Vehicle and Traffic Law § 1146(a) requires a driver to “exercise due care to avoid colliding with any . . . pedestrian.” Here, the unrebutted evidence established a prima facie violation of § 1146(a), as it demonstrated that Burke failed to exercise due care to avoid hitting the injured plaintiff. Cioffi v S.M. Foods, Inc., 2019 NY Slip Op 09251, Second Dept 12-24-19

 

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THE CAR IN WHICH PLAINTIFFS WERE PASSENGERS HAD THE RIGHT OF WAY ON A THROUGH ROAD; WHETHER DEFENDANT’S CAR STOPPED AT THE STOP SIGN BEFORE PULLING OUT INTO THE PATH OF PLAINTIFFS’ CAR WAS NOT DISPOSITIVE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-passengers’ motion for summary judgment in this intersection traffic accident case should have been granted. The Hernandez/Transit car, in which plaintiffs were passengers, had the right of way on a through road. The defendant Desriviere’s car was on an intersecting street with a stop sign. The Second Department held that the fact the Desriviere car may have stopped at the stop sign before entering the intersection did not raise a relevant question of fact:

As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign in violation of Vehicle and Traffic Law § 1142(a) is negligent as a matter of law … . The driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws that require him or her to yield … . Yet, “a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident” … . Here, Hernandez and Julie P. Transit established their entitlement to judgment as a matter of law by submitting evidence demonstrating that (1) Hernandez had the right-of-way, (2) that because Desriviere failed to yield the right-of-way upon entering the intersection in violation of Vehicle and Traffic Law § 1142(a), he was negligent as a matter of law, and (3) that Desriviere’s negligence was the sole proximate cause of the accident … . The question of whether Desriviere stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop … . Belle-Fleur v Desriviere, 2019 NY Slip Op 09244, Second Dept 12-24-19

 

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MORTGAGE COMPANY’S PROOF OF STANDING AND MAILING OF RPAPL 1304 NOTICE INSUFFICIENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not provide sufficient evidence of standing and mailing of the RPAPL 1304 notice in this foreclosure proceeding:

… [T]he plaintiff failed to meet its prima facie burden of establishing that it had standing to commence this action. In support of its motion, the plaintiff relied on the affidavit of its Document Execution Specialist, Jerrell Menyweather, who attested that the plaintiff received physical delivery of the original note on July 6, 2007, and was in possession and the holder of the note, prior to commencement of the action … . While Menyweather attested that his knowledge was based on business records maintained by the plaintiff, he failed to annex the business records that he referred to in his affidavit. Thus, his affidavit constituted inadmissible hearsay and lacked probative value on this issue of the plaintiff’s standing … .

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304. Although Menyweather stated in the affidavit that the RPAPL 1304 notices were sent to certain of the defendants via certified and first-class mail, the plaintiff failed to provide any documents to prove that the mailing actually took place. Moreover, “[w]hile mailing may be proved by documents meeting the requirements of the business records exception to the rule against hearsay,” Menyweather “did not make the requisite showing that he was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Nationstar Mtge., LLC v Jean-Baptiste, 2019 NY Slip Op 09011, Second Dept 12-18-19

 

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EVIDENCE PETITIONER HAD MADE A THREAT TO A PRISON EMPLOYEE WAS INSUFFICIENT, DETERMINATION ANNULLED (SECOND DEPT). ​

The Second Department, annulling the determination, held that the evidence petitioner had made a threat was insufficient:

… [W]e agree with the petitioner that the determination that he was guilty of violating prison disciplinary rule 102.10 was not supported by substantial evidence. In reviewing a prison disciplinary determination, a court’s review of the factual findings is limited to ascertaining whether the determination is supported by substantial evidence (see CPLR 7803[4] …). Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … .

Prison disciplinary rule 102.10 provides that “[a]n inmate shall not, under any circumstances, make any threat, spoken, in writing, or by gesture” (7 NYCRR 270.2[B][3][i]). Here, the misbehavior report and the hearing testimony merely demonstrated that the petitioner “became loud and argumentative” when he was denied permission to hold a certain event in his capacity as the president of a certain prison inmate organization. The evidence merely showed that the petitioner was upset, and the statement by the prison’s Deputy Superintendent of Programs that she felt “intimidated,” and that the petitioner “stared at [her] and in a threatening manner left the area,” without more, was insufficient to establish that the petitioner actually made a threat against her. Matter of Mays v Early, 2019 NY Slip Op 09004, Second Dept 12-18-19

 

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