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DEFENDANT IN THIS FORECLOSURE ACTION PRESENTED SUFFICIENT EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT TO WARRANT A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurring memorandum, determined that defendant made a sufficient showing to warrant a hearing on whether she was served with the summons and complaint in this foreclosure action:

Although the defendant did not deny having actual notice of the action, “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” … . “Service is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction [when there has not been compliance with] prescribed conditions of service” … . * * *

The defendant rebutted the process server’s affidavit of service through her specific and detailed affidavit, in which she averred that “[t]he [a]ffidavit of service falsely states that a copy of the Summons and Complaint was affixed to my door.” The defendant’s affidavit set out in great detail that the defendant was at home each time that the process server purportedly attempted service, as she was recuperating from a kidney transplant. The defendant averred that April 3, 2009, which happened to be her birthday, was a Friday, and that as an observant Jew she did not leave her home. The defendant submitted a Sabbath calendar printout showing that the sun did not set until 8:04 p.m. on April 4, 2009, approximately one hour after the process server purportedly affixed the summons and complaint to her door. The defendant averred that she never heard anyone knock at her door or ring her doorbell and that, despite various medical problems, she has no issues with her hearing. The defendant averred that her daughter came to pick her up for dinner at 8:30 p.m. on April 4, 2009, and that upon leaving her home, she did not see any documents affixed to her door. The foregoing detailed averments were sufficient to rebut the process server’s affidavit and to warrant a hearing on the issue of whether service was properly made … . HSBC Bank USA, N.A. v Assouline, 2019 NY Slip Op 07891, Second Dept 11-6-19

 

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EVIDENCE DEFENDANT HAD BEEN ACCUSED OF FRAUDULENTLY PRACTICING DENTISTRY IN THE PAST WAS NOT RELEVANT TO THE INSTANT PROCEEDING ALLEGING THE UNLICENSED PRACTICE OF DENTISTRY; THE PREJUDICIAL EFFECT WAS EXACERBATED BY REFERENCES TO THE ALLEGED FRAUD BY THE PROSECUTOR IN SUMMATION AND BY THE JUDGE IN THE INSTRUCTIONS TO THE JURY; DEFENDANT’S CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the probative value of evidence submitted to the jury was outweighed by its prejudicial effect. Defendant was charged under the Education Law with practicing dentistry without a license. Defendant alleged he was legally acting as a clinical director in a dental office. The jury was presented with evidence indicating defendant had been previously accused of practicing dentistry fraudulently:

Evidence that the defendant voluntarily surrendered his license to practice dentistry in 2000 was properly admitted to show that the defendant was unlicensed and was aware that he was unlicensed. However, the evidence submitted to the jury, which consisted of the defendant’s “application to surrender license,” stated not only that he was voluntarily surrendering his license, but also that he was doing so because he was “under investigation for allegations that [he] practiced the profession of dentistry fraudulently, within the purview and meaning of New York Education Law section 6509(2), and committed unprofessional conduct by engaging in conduct in the practice of the profession of dentistry evidencing moral unfitness to practice.” During summation, the prosecutor argued that the defendant had surrendered his license because he “had practiced the profession of dentistry fraudulently.” Thereafter, during the Supreme Court’s instructions to the jury, the court instructed the jurors that “there was evidence in the case that on another occasion, the defendant engaged in criminal conduct and was convicted of a crime,” which was “offered as evidence for [the jurors’] consideration on the questions of whether those facts are inextricably interwoven with the crimes charged, if [they] find the evidence believable, [they] may consider it for that limited purpose and for none other.”

The references to fraud and moral turpitude were not relevant to the issue of whether the defendant was unlicensed and was aware that he was unlicensed. Under the circumstances, any probative value of the evidence of the prior fraud was outweighed by its prejudicial effect … .  People v Hollander, 2019 NY Slip Op 07950, Second Dept 11-6-19

 

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THE ONE-HALF INCH DEFECT IN A STEP WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT DID NOT DEMONSTRATE A LACK OF NOTICE OF THE DEFECT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the 1/2 inch defect in a step was not trivial as a matter of law and the defendant did not demonstrate a lack of notice:

“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” … . Here, the evidence attached to the defendants’ moving papers indicated that there was a defect on the nosing of the step that was created by wear to the step and was approximately ½-inch long and extended down ½-inch on the riser. This alleged defective condition was located on a portion of the step where the plaintiff had to stand while twisting her body to close an exterior door. …

… [T]he defendants’ moving papers failed to eliminate triable issue of facts as to whether the condition had existed for a sufficient period of time for it to have been discovered and remedied by the defendants in the exercise of reasonable care … . Coker v McMillan, 2019 NY Slip Op 07948, Second Dept 11-6-19

 

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THE CITY HAD CLEARED A PATH FREE OF ICE AND SNOW ON THE SIDEWALK; PLAINTIFF SLIPPED AND FELL WHEN SHE STEPPED BACKWARDS INTO AN AREA OF THE SIDEWALK WHICH HAD NOT BEEN CLEARED TO AVOID AN UNLEASHED DOG; THE CITY’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this sidewalk slip and fall case was properly granted. There was a clear path on the sidewalk. Plaintiff slipped and fell when she stepped backward into an area of the sidewalk which had not been cleared to avoid an unleashed dog:

” To render a municipality liable for an injury caused by the presence of snow and ice on the streets,'” it must be established that ” the condition constitutes an unusual or dangerous obstruction to travel and that either the municipality caused the condition or a sufficient time had elapsed to afford a presumption of the existence of the condition and an opportunity to effect its removal'” … . This rule applies to sidewalks … . “Generally, whether a municipality was negligent in permitting extraordinary accumulations of snow to exist for an unreasonable period of time or whether it had a reasonable opportunity to remedy the condition are questions for the jury” … .

Here, in opposition to the City’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether the City had constructive notice of the ice condition that allegedly caused the plaintiff to fall and whether the ice condition was unusual or dangerous. The evidence indicated that a clear path had been shoveled on the sidewalk, but that, due to repeated snow storms, snow and ice remained in the area of the sidewalk close to the street. When the plaintiff stepped backward to avoid the unleashed dog, she stepped in the area of the sidewalk closer to the street, upon which there was a two-inch thick patch of ice of unspecified size. There is no evidence that the patch of ice was unusual or dangerous. Cespedes v City of New York, 2019 NY Slip Op 07943, Second Dept 11-6-19

 

THE BUILDER OF THE HOUSE WAS NOT A NECESSARY PARTY IN THIS ACTION AGAINST THE SELLER BY THE PURCHASER; EVEN IF THE BUILDER WERE A NECESSARY PARTY, THE COURT SHOULD HAVE SUMMONED THE BUILDER ITSELF PURSUANT TO CPLR 1001 (b) RATHER THAN DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint should not have been dismissed for failure to join a necessary party because (1) defendant (Accent) was not a necessary party and (2) even if Accent were a necessary party, the court should have summoned Accent itself pursuant to CPLR 1001 (b). The action concerned alleged defects in a house plaintiffs had purchased from defendants and claimed fraud, negligence, deceptive practices, breach of implied warranty, and breach of contract . Accent had constructed the house:

CPLR 1001 “limit[s] the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of nonparties” … . Here, the defendants failed to demonstrate that Accent ought to be a party if complete relief is to be accorded between the plaintiffs and the defendants (see CPLR 1001[a]), and also failed to demonstrate that Accent will be inequitably affected by a judgment in this action absent its joinder … . Accent has no connection to the plaintiffs’ cause of action for breach of contract, which alleges only that the defendants breached their contract with the plaintiffs. As for the balance of the plaintiffs’ claims, Accent is, at best, a joint tortfeasor, with the plaintiffs having the option to proceed against any or all joint tortfeasors … . Accordingly, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the remaining branches of the defendants’ motion, and for further proceedings, if necessary, thereafter.

We note that, even if Accent was a necessary party, it appears to be subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than granting that branch of the defendants’ motion which was to dismiss the complaint for failure to join a necessary party (CPLR 1001[b] …). Blatt v Johar, 2019 NY Slip Op 07901, Second Dept 11-6-19

 

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TRIAL JUDGE SHOULD NOT HAVE LIMITED DEFENSE CROSS-EXAMINATION OF A WITNESS TESTIFYING ABOUT DNA TRANSFER, AND SHOULD NOT HAVE INSTRUCTED THE JURY TO ACCEPT A POLICE OFFICER’S EXPLANATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have limited cross-examination of the prosecution’s witness about DNA transfer, and should not have instructed the jury, during defense counsel’s summation, to accept the testimony of a prosecution witness:

… [T]he defendant’s contention that his right to confrontation was violated when the Supreme Court limited cross-examination of a prosecution witness on the issue of DNA transfer is preserved for appellate review  … . Furthermore, the court’s limitation of defense counsel’s cross-examination with regard to DNA transfer was an improvident exercise of discretion, since the testimony defense counsel sought to elicit would have been relevant and would not have confused or misled the jury … . Moreover, under the circumstances presented, the error was not harmless, as there is a reasonable possibility that the error contributed to the defendant’s convictions … .

We also agree with the defendant’s contention that his right to a fair trial was violated when, during summation, defense counsel attacked the credibility of the testimony of certain police officers regarding wanted posters, and the Supreme Court instructed the jury, “there was testimony on that. The jurors will be bound by its recollection of the testimony and the explanation.” Since a “jury is presumed to follow the court’s instructions” … , the court’s instruction, which bound the jury to accept the officer’s explanation, rather than to rely on its recollection of the testimony and the evidence, was erroneous. People v Kennedy, 2019 NY Slip Op 07899, Second Dept 11-6-19

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE IN THIS STATUTORY RAPE CASE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment from level 2 to level 1, determined a downward department was appropriate because the statutory rape conviction involved consensual sex and defendant had no other sexual offenses in his history:

In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety. The Guidelines provide that “[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender’s risk to public safety” … .

Considering all of the circumstances present here, including that this offense is the only sex-related crime in the defendant’s history, as well as the fact that the defendant’s overall score of 80 points, as reduced by the Supreme Court, was near the low end of the range applicable to a presumptive level two designation (75 to 105 points), the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure was appropriate, and the defendant should have been designated a level one sex offender. People v Fisher, 2019 NY Slip Op 07893, Second Dept 11-6-19

 

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PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC-ACCIDENT, REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED DESPITE QUESTIONS OF FACT ABOUT THE TWO DRIVERS’ NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-passenger’s motion for summary judgment in this rear-end collision case should have been granted, despite questions of fact about whether either driver was negligent:

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] …). Here, the plaintiffs made a prima facie showing of entitlement to summary judgment on their motion, and in opposition, the defendants failed to raise a triable issue of fact … . It is uncontested that the injured plaintiff was a passenger seated in the rear passenger seat of the Freed vehicle. While both drivers involved in the accident submitted affidavits in which each maintained that they were free from fault, neither driver suggested that the injured plaintiff bore any fault in the happening of the accident … . Romain v City of New York, 2019 NY Slip Op 07885, Second Dept 11-6-19

 

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A FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DOES NOT ACCELERATE THE MORTGAGE DEBT AND DOES NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department determined the prior foreclosure action which was dismissed on the ground the bank did not demonstrate standing did not serve to accelerate the mortgage debt. Therefore the statute of limitations did not start running and the current foreclosure action is timely:

… [T]he Supreme Court in the 2009 action determined that the defendant was entitled to dismissal of the complaint insofar as asserted against him for lack of standing. “Where, as here, the prior action is dismissed on the ground that the plaintiff lacked standing, the purported acceleration is a nullity, and the statute of limitations does not begin to run at the time of the purported acceleration” … . Further, the record contains no evidence of either a written assignment or physical delivery of the underlying note to the plaintiff prior to April 2, 2009, so as to establish the plaintiff’s standing to commence the 2009 action … . Thus, contrary to the defendant’s contentions, the commencement of the 2009 action did not accelerate the mortgage debt, and the statute of limitations did not begin to run when the 2009 action was commenced … . HSBC Bank USA v Rinaldi, 2019 NY Slip Op 07878, Second Dept 11-6-19

 

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A PARTY NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO BE ENTITLED TO A WEIGHT OF THE EVIDENCE REVIEW BY AN APPELLATE COURT; THE VERDICT FINDING DEFENDANT BUS DRIVER NEGLIGENT, BUT FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL, WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, overruling precedent and disagreeing with the 3rd and 4th Departments, determined (1) a party need not make a motion to set aside the verdict to be entitled to an “against the weight of the evidence” review by the appellate court, and (2) the verdict finding defendant bus driver negligent but also finding the negligence was not the proximate cause of plaintiff’s slip and fall was against the weight of the evidence. Plaintiff stepped into a pothole when getting off the bus which had stopped to let her off after she had missed her stop:

A … source of this Court’s authority to review the weight of the evidence absent a motion to set aside the verdict comes from CPLR 4404(a), the provision authorizing postverdict motions for a new trial. CPLR 4404(a) provides, in pertinent part: “After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may . . . order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence” … . Insofar as the trial court is permitted to order a new trial “on its own initiative” (CPLR 4404[a]), and “the power of the Appellate Division . . . is as broad as that of the trial court” … , this Court also possesses the power to order a new trial where the appellant made no motion for that relief in the trial court. …

… [I]t was logically impossible for the jury to conclude that [the bus driver] was negligent in failing to provide the plaintiff with a safe location to alight from the bus but that such negligence was not a proximate cause of the accident. It was uncontradicted that the plaintiff stepped directly from the bus into the pothole, and immediately fell to the ground. The unbroken chain of events was witnessed by … a neutral witness with no relationship or prior affiliation with the parties, and corroborated by photographs of the scene taken immediately after the accident occurred. Assuming, as the jury found, that [the driver]  was negligent, it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Under these circumstances, the issues of reasonable care and proximate cause were so inextricably interwoven that the jury’s verdict could not have been reached upon any fair interpretation of the evidence … . Evans v New York City Tr. Auth., 2019 NY Slip Op 07872, Second Dept 11-6-19

 

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