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DEFICIENCIES IN THE BANK’S PROOF OF DEFAULT, STANDING AND THE AMOUNT OWED COULD NOT BE CURED BY SUBMITTING ADDITIONAL PROOF IN THE REPLY PAPERS IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not submit sufficient proof of defendants’ default, standing or the amount owed, and the deficiencies could not be cured by a second affidavit submitted in reply:

… [T]he plaintiff submitted the affidavit of its assistant vice president, Keith Weinkauf. As to the defendants’ alleged default, Weinkauf stated that the defendants “fail[ed] to make the full payment due on the [m]aturity [d]ate” of the note. On the issue of standing, Weinkauf averred that “[e]ffective March 31, 2016, Montauk Credit Union merged into Bethpage Federal Credit Union.” Further, with respect to the amount owed by the defendants, Weinkauf stated that the current unpaid principal balance due on the note was $58,165.61, plus interest, late charges, and fees. However, apart from producing a copy of the note itself, Weinkauf submitted no evidence in admissible form with his affidavit to establish the existence of a default, the plaintiff’s standing, or the calculation of the unpaid amount owed by the defendants … . Although the plaintiff later submitted, with its reply papers, a second affidavit from Weinkauf, along with supporting documentary evidence, to establish its standing, the plaintiff could not, under the circumstances presented, rely on the second affidavit to correct deficiencies inherent in the original one … . Bethpage Fed. Credit Union v Luzzi, 2019 NY Slip Op 08550, Second Dept, 11-27-19

 

PLAINTIFFS, PASSENGERS IN A CAR WITH THE RIGHT OF WAY, WERE ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; COMPARATIVE NEGLIGENCE CAN BE CONSIDERED WHERE, AS HERE, PLAINTIFFS MOVED TO DISMISS DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this intersection traffic accident case. Plaintiffs were passengers in a car which had the right of way. Defendant may or may not have stopped at a stop before proceeding into the intersection. The Second Department noted that whether the defendant stopped or not was irrelevant. Although comparative negligence is generally not an issue at the summary judgment stage, it can be considered where, as here, the plaintiffs moved to dismiss defendant’s comparative-negligence affirmative defense. The defense obviously does not apply to innocent passengers:

“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, 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, in support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the defendant driver was negligent in failing to see what was there to be seen and in entering the intersection without yielding the right-of-way, even if he did initially stop at the stop sign (see Vehicle and Traffic Law §§ 1142[a]; 1172[a] … ). With respect to the issue of comparative negligence, the plaintiffs demonstrated, prima facie, that they were innocent passengers who did not contribute to the happening of the accident. The right of the plaintiffs, as innocent passengers, to summary judgment is not “restricted by potential issues of comparative negligence” which may exist as between the defendant driver and the driver of the host vehicle … . Balladares v City of New York, 2019 NY Slip Op 08549, Second Dept 11-27-19

 

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PLAINTIFF WAS KNOCKED TO THE FLOOR BY A SHOPPING CART PUSHED BY ANOTHER STORE CUSTOMER; THE DEFENDANT STORE DID NOT HAVE A DUTY TO MONITOR CUSTOMERS’ USE OF SHOPPING CARTS; ISSUE COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff was knocked to the floor by a shopping cart pushed by another customer in the defendant’s store. Apparently the customer had piled items high in the cart and couldn’t see ahead of it. The court noted that, although defendant raised the “no duty to monitor customers” issue for the first time on appeal, it could be considered because it raises an issue of law than could not have been avoided by the court below:

The defendant contends that it was entitled to summary judgment dismissing the complaint insofar as asserted against it because it did not have a duty to control the conduct of the customer who struck Novak with the shopping cart. Although the defendant has raised this contention for the first time on appeal, “we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture”… .

“Store owners are charged with the duty of keeping their premises in a reasonably safe condition for the benefit of their customers” … . “[T]his duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances” … . “This duty is, however, not limitless” … . “[A]n owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … .

Here, the plaintiff contends that the defendant was negligent in failing to monitor its customers’ use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height. However, the defendant did not owe the plaintiff a duty to protect her from the other customer’s negligent use of the U-boat shopping cart because it did not have control over that customer’s actions … . Aupperlee v Restaurant Depot, LLC, 2019 NY Slip Op 08548, Second Dept 11-27-19

 

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THE ATTORNEY-CLIENT PRIVILEGE DID NOT PASS TO THE FOREIGN (DELAWARE) CORPORATION AFTER A MERGER AND ACQUISITION OF NEW YORK BUSINESS ENTITIES; THEREFORE THE NEW YORK PARTIES, IN THEIR CLAIMS AGAINST THE ATTORNEYS WHO REPRESENTED THEM IN THE TRANSACTION, CAN SEEK ACCESS TO THE ATTORNEYS’ PRIVILEGED COMMUNICATIONS CONCERNING THE TRANSACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Austin, reversing Supreme Court, determined that New York law applied to a party’s assertion of  the attorney-client privilege for documents associated with a corporate acquisition and merger involving New York and Delaware business entities. The opinion is fact-based and far too complex and comprehensive to summarize here. The Second Department, disagreeing with Supreme Court, held that the choice of law was governed by public policy, and the proper theory for access to the privileged documents is New York’s law of replevin. In a nutshell, the Second Department held that the attorney-client privilege did not pass to the foreign corporation after the merger and acquisition, but rather remained with the the New York parties (Sina and Askari) and allowed the New York parties to pursue claims against the attorneys (McDermott)  who represented them in the transaction:

In a situation where documents are sought, New York will apply the law of the forum where the evidence will be introduced at trial or the location of the proceeding seeking discovery of those documents … . Here, the privileged communications being sought by the plaintiffs in this New York replevin action were made in New York between New York-based attorneys at McDermott and Sina, a New York corporation, involving its then-majority shareholder and president, Askari, a New York resident. The sole nexus that Delaware has to this action is that Specialty is a limited liability company formed under the laws of that state. Consequently, New York law applies in this action sounding in replevin seeking the disclosure of McDermott’s files … . …

It would indeed be incongruous to enforce a law which effectively forecloses New York corporations merging with foreign corporations from having the ability to pursue their claims against their counsel or the newly formed, post-merger entities based on the post-merger entities’ control of the documents needed by the former entities to prosecute potential claims. Here, Delaware law gives the new corporation, a putative defendant, sole access to and control of the merger-related documents by the exercise of the attorney-client privilege. This is contrary to New York public policy … . * * *

Here, Business Corporation Law § 1006 specifically provides that a dissolved corporation, like Sina, may commence an action in any court under its corporate name. Sina’s dissolution does not affect Sina’s right or capacity to maintain this replevin action since the claim arose from McDermott’s representation of Sina which began before Sina’s dissolution. … Thus, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law in this action for replevin since the plaintiffs submitted evidence, through Askari’s affidavit, that McDermott represented Sina and Askari during the “transactions.” As a result, the plaintiffs demonstrated, prima facie, their superior possessory right to McDermott’s files. Askari v McDermott, Will & Emery, LLP, 2019 NY Slip Op 08547, Second Dept 11-27-19

 

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DEFENDANTS’ AFFIDAVITS SUBMITTED IN REPLY TO CLAIMANT’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RAISED A QUESTION OF FACT; DEFENDANTS’ MOTION TO DISMISS THE CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined that the defendants’ motion to dismiss the claim should not have been granted. Claimant alleged she was injured when she collided with a glass exit door at Brooklyn College. The notice of intention to file a claim and the claim indicated photographs of the door were attached. Defendants apparently assumed the door in question was the front door to the building, but discovery indicated it was the back door. Defendants moved for summary judgment arguing that claimant failed to give proper notice of the location of the door as required by Court of Claims Act 11 (b). Defendants submitted affidavits stating that the computer files were searched and no photographs of the door were found. The Second Department held there was a question of fact whether the photographs of the door were attached to the notice of intention and the claim:

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, inter alia, the “place where such claim arose”… . “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party'” … . Summary judgment is to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” … . “[O]n such a motion, the court’s role is limited to issue finding, not issue resolution” … . Here, the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue. Accordingly, the Court of Claims should have denied the defendants’ motion. Shabat v State of New York, 2019 NY Slip Op 08589, Second Dept 11-27-19

 

CONVICTIONS OF INCLUSORY CONCURRENT COUNTS VACATED (SECOND DEPT).

The Second Department determined inclusory concurrent counts must be dismissed and the related convictions and sentences vacated:

… [A]s charged, the counts alleging driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree were inclusory concurrent counts of the count alleging aggravated unlicensed operation of a motor vehicle in the first degree (see CPL 300.30[4]; 300.40[3][b]; Vehicle and Traffic Law §§ 511[2][a][ii]; [3][a][i]; 1192). Accordingly, the defendant’s convictions of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) and aggravated unlicensed operation of a motor vehicle in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment dismissed. Under the circumstances of this case, the defendant’s contention that the mandatory surcharge and crime victim assistance fee must be reduced is more appropriately raised before the Supreme Court and, accordingly, we remit the matter to the Supreme Court … to consider this issue … . People v Delcid, 2019 NY Slip Op 08575, Second Dept 11-27-19

 

PLEA TO ASSAULT FIRST WAS DEFECTIVE BECAUSE THE INTENT TO INFLICT SERIOUS PHYSICAL INJURY WAS NOT STATED IN THE ALLOCUTION (SECOND DEPT).

The Second Department, reversing the judgment, determined the plea to assault first was defective because the intent to inflict serious physical injury was not stated in the allocution:

During the plea colloquy, the Supreme Court stated, and the defendant admitted, the elements of assault in the first degree as including an intent to inflict physical injury and conduct which in fact causes physical injury. However, the crime of assault in the first degree, as defined in Penal Law § 120.10(1), requires an intent to inflict serious physical injury and conduct which in fact causes serious physical injury. Under the circumstances, since the defendant admitted harboring an intent and inflicting an injury other than those required for the commission of assault in the first degree, the defendant’s plea of guilty must be vacated, as her allocution failed to make out the requisite elements of that crime … . People v Steele-Warrick, 2019 NY Slip Op 08428, Second Dept 11-20-19

 

PROBATION ONLY IS NOT A LEGAL SENTENCE FOR ASSAULT SECOND; ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED IN FAVOR OF A PERSON WHO WAS NOT A VICTIM OR WITNESS (SECOND DEPT).

The Second Department determined the defendant could not be sentenced to probation only for assault and Supreme Court should not have issue an order of protection in favor of a person who was not a victim or a witness:

Penal Law § 60.05(5) mandates that a person convicted of the class D violent felony offense of assault in the second degree be sentenced to a term of imprisonment … . Such a sentence could consist of a determinate term of imprisonment of at least two years and no more than seven years … , or alternatively, a definite term of imprisonment of one year or less under Penal Law § 70.00(4) or an intermittent term of imprisonment under Penal Law § 85.00 … . Moreover, a split sentence of imprisonment and probation is also authorized … .

Consequently, as the defendant argues and the People concede, the defendant’s sentence of a term of probation only with respect to his conviction of assault in the second degree was illegal, and the sentence must be vacated and the matter remitted to the Supreme Court, Richmond County for resentencing or to allow the defendant to withdraw his plea of guilty … .

The defendant, a first time felony offender, requests that his sentence be equivalent to the amount of time that he has already served in connection with this conviction. Such a sentence would be a legal sentence if the sentencing court, in considering the circumstances of the crime and the defendant’s character, deems such a sentence to be proper … .

Further, as the defendant argues and the People concede, the Supreme Court had no authority to issue an order of protection in favor of an individual who was neither a victim of nor a witness to the crime to which the defendant pleaded guilty … . People v Ferguson, 2019 NY Slip Op 08424, Second Dept 11-20-19

 

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ALTHOUGH THE TOWN DEMONSTRATED THE DEPARTMENT OF PUBLIC WORKS DID NOT HAVE NOTICE OF THE ALLEGED SIDEWALK DEFECT IN THIS SLIP AND FALL CASE, IT DID NOT DEMONSTRATE THE TOWN CLERK’S RECORDS WERE SEARCHED; TOWN’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the town did not demonstrate that it did not receive written notice of the alleged sidewalk defect in this slip and fall case. The town’s motion for summary judgment was therefore properly denied:

In support of its motion for summary judgment, the Town submitted the deposition testimony of a project supervisor for the Town’s Department of Public Works, who testified that he directed an administrative aide to perform a record search of “the Town’s complaint database.” The Town also submitted an affidavit from the administrative aide for the Department of Public Works who conducted the search. The administrative aide stated that her duties included “searching the official records of the Department of Public Works” to determine “whether the Department of Public Works ha[d] been provided with any prior written notice” of any defects in the area where the incident occurred. The administrative aide stated that her search revealed that “the Town was not in receipt of any written notice or written complaints.”

While this evidence established, prima facie, that the Town’s Department of Public Works did not have prior written notice of the alleged defect in the sidewalk, neither the deposition testimony nor the affidavit state specifically that the Town Clerk’s records were searched for prior written notice of the alleged defect … . The Town’s failure to provide specific evidence that the records of both the Department of Public Works and the Town Clerk were searched for prior written notice constitutes a failure to demonstrate its prima facie entitlement to judgment as a matter of law. Otto v Miller, 2019 NY Slip Op 08417, Second Dept 11-20-19

 

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REPORTS BY THE DISTRICT ATTORNEY’S CONVICTION REVIEW UNIT (CRU) EXONERATING CONVICTED PERSONS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL); AN EXONERATED PERSON MAY WAIVE THE SEALING REQUIREMENT (CPL 160.50) AND CONSENT TO DISCLOSURE OF A REPORT; THE RELEASED REPORT HERE IS SUBJECT TO REDACTION DETERMINED IN AN IN CAMERA REVIEW BY A JUDGE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined: (1) the redacted report of the District Attorney’s Conviction Review Unit (CRU) concerning the exoneration of Jabbar Washington was properly made available to the New York Times because Washington consented to the unsealing of the document (CPL 160.50(a)(d)); (2) absent such consent, the CRU reports are exempt from disclosure under FOIL; and (3) the redaction of the Washington report should be reviewed by a judge (in camera review):

CPL 160.50 does not define what constitutes an official record relating to an arrest or prosecution, and the Court of Appeals has held that “bright line rules are not wholly appropriate in this area” … . …

… [ T]he CRU’s final reports constitute official records created in connection with the arrest and prosecution of the persons whose convictions were ultimately vacated through the conviction review process. At the time the reports were created, the subjects of the reports stood convicted as the result of prosecutorial action. The reports are “official records” in that they were created by the DA’s office itself for the purpose of scrutinizing the propriety of each of the subject convictions. …

… [T]hat the CRU’s reports might serve a broader public purpose in leading to reform of police agencies or prosecutors’ offices, is not a basis to overlook the protections endowed by CPL 160.50 to the individuals exonerated through the CRU’s work. Matter of New York Times Co. v District Attorney of Kings County, 2019 NY Slip Op 08410, Second Dept 11-20-19

 

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