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PLAINTIFF BANK SUBMITTED EVIDENCE IN INADMISSIBLE FORM AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE CONDITIONS IN THE MORTGAGE; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence submitted by defendant in this foreclosure action was either not in admissible form or did not comply with the requirements of the mortgage:

In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and to appoint a referee, the plaintiff submitted an affidavit of an employee of its loan servicer, Ocwen Loan Servicing, LLC (hereinafter Ocwen). The employee attested that she was familiar with business records of Ocwen but failed to lay a proper foundation for the admission of records concerning the defendant’s payment history and default. Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule … .

… [T]he defendant … failed to establish that the required notice of default was mailed by first class mail or actually delivered to the notice address if sent by other means, as required by paragraphs 15 and 22 of the mortgage. U.S. Bank N.A. v Kochhar, 2019 NY Slip Op 07439, Second Dept 10-16-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANTS AN EXTENSION OF TIME TO ANSWER IN THIS FORECLOSURE ACTION, RELIEF WHICH WAS NOT REQUESTED BY DEFENDANTS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief in this foreclosure action which was not requested by the defendant:

“The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the defendants did not request an extension of time to answer, and the Supreme Court’s determination to, sua sponte, grant that relief was an improvident exercise of discretion. Indeed, to extend the time to answer the complaint, a defendant must generally provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action … . Here, the only excuse offered by the defendants for their default was the plaintiff’s alleged failure to properly serve them, which excuse was rejected by the Supreme Court. Further, the defendants did not proffer any potentially meritorious defense to the action. We note also that the court’s sua sponte determination to extend the time within which the defendants had to answer the complaint is fundamentally inconsistent with its determination to deny that branch of the defendants’ motion which was to vacate the judgment of foreclosure and sale. Since the judgment determined the action and the rights of the parties, allowing the defendants to interpose an answer was without practical import. U.S. Bank N.A. v Halevy, 2019 NY Slip Op 07438, Second Dept 10-16-19

 

PLAINTIFF SLIPPED AND FELL ON PAINTED AREAS OF A CROSS-WALK IN DEFENDANT’S PARKING LOT; QUESTION OF FACT WHETHER THE PAINTED AREAS WERE SLIPPERY WHEN WET BECAUSE SAND HAD NOT BEEN ADDED TO THE PAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the painted areas of a cross-walk in a parking lot constituted a dangerous condition in this slip and fall case. Plaintiff’s expert presented evidence the painted areas were very slippery when wet and sand should have been added to the paint:

… [T]he plaintiff raised a triable issue of fact as to whether the painted lines constituted a dangerous or defective condition … . The plaintiff submitted the affidavit of his expert, who opined that the painted surface was “non-slip” when dry, but became very slippery when wet. The plaintiff’s expert further opined that when coatings are applied in an area where people are expected to walk, particularly areas exposed to wet conditions, either sand is added to provide traction or a coating that is slip resistant under wet conditions is used. He also noted that in other areas of the parking lot where the accident occurred, a different coating was used, and that coating was slip resistant under wet conditions. Rojecki v Genting N.Y., LLC, 2019 NY Slip Op 07431, Second Dept 10-2019

 

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POST-VERDICT INTEREST IN THIS ACTION AGAINST THE NEW YORK CITY TRANSIT AUTHORITY SHOULD HAVE BEEN CALCULATED AT THREE PERCENT PURSUANT TO THE PUBLIC AUTHORITIES LAW (SECOND DEPT).

The Second Department noted that the Public Authorities Law allows only three percent interest from the date of the verdict in this action against the New York City Transit Authority. Plaintiff was injured while driving when a piece of metal fell from elevated tracks through the windshield. The nearly two-million dollar verdict was affirmed:

After a trial on the issue of damages, the jury returned a verdict in favor of the plaintiff and against the defendants in the principal sums of $800,000 for past pain and suffering and $1,000,000 for future pain and suffering over a 15-year period. The defendants appeal from a judgment in favor of the plaintiff and against them in the total sum of $1,967,633.08, including interest in the sum of $64,249.90. * * *

… [T]he judgment incorrectly applied an interest rate in excess of the maximum legal rate of three percent per annum to the plaintiff’s award against the defendants (see Public Authorities Law § 1212[6] … ). We therefore remit the matter … for recalculation of interest at the rate of three percent per annum from the date of the verdict … . Rojas v New York City Tr. Auth., 2019 NY Slip Op 07430, Second Dept 10-16-19

 

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DEFENSE COUNSEL’S QUESTIONS WHETHER COMPLAINANTS HAD HIRED LAWYERS AND HAD SUED DEFENDANT-TEACHER AND THE SCHOOL DISTRICT IN THIS CHILD SEX ABUSE CASE DID NOT OPEN THE DOOR TO ALL EVIDENCE OF DEFENDANT’S ALLEGED PRIOR SEXUAL ABUSE OF CHILDREN, CONVICTION REVERSED BECAUSE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL; JUDGE SHOULD NOT HAVE PARTICIPATED IN A READBACK OF TESTIMONY (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this child sex abuse prosecution, determined that the trial court should not have allowed the prosecution to present all evidence of defendant’s alleged prior sexual abuse of children after defense counsel asked complainants whether they had hired a lawyer and were suing the defendant-teacher and the school district based upon defendant’s alleged sexual abuse of children. Re-direct should have been limited to only the evidence necessary to clarify and explain the reasons for the witness’s hiring a lawyer and bringing a lawsuit. The Second Department also noted that the trial judge should have participated in the readback of testimony and the harmless error analysis is not applicable:

… [D]efense counsel asked questions regarding the civil actions in an attempt to impeach credibility and establish that a motivation for some of the complainants’ testimony against the defendant was monetary gain or a pecuniary interest. This line of inquiry did not open an unfettered passageway for the People to elicit extensive and prejudicial evidence regarding alleged uncharged complaints. The extraneous testimony of alleged uncharged complaints did not serve to explain or clarify whether the civil actions provided certain complainants with a financial incentive to testify.

Moreover, the admission of evidence of alleged uncharged complaints violated the basic principle underlying Molineux and its progeny that “a criminal case should be tried on the facts and not on the basis of a defendant’s propensity to commit the crime charged …”. …

The Court of Appeals has explained that “if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction” … . People v Watts, 2019 NY Slip Op 07426, Second Dept 10-16-19

 

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COURT HAD JURISDICTION TO ISSUE EAVESDROPPING WARRANTS TO INTERCEPT CELL PHONE CALLS AND TEXT MESSAGES SENT AND RECEIVED OUTSIDE NEW YORK STATE (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to issue eavesdropping warrants to intercept cell phone calls and text messages made and received outside New York State:

“[A]ny justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed” (CPL 700.05[4]) “may issue an eavesdropping warrant . . . upon ex parte application of an applicant who is authorized by law to investigate, prosecute or participate in the prosecution of the particular designated offense which is the subject of the application” (CPL 700.10[1]). Although the word “execute” is not defined in CPL article 700, the plain meaning of the word “execute” and the use of that word in relevant sections of the Criminal Procedure Law reveal that an eavesdropping warrant is “executed” when a communication is intercepted by law enforcement officers, that is, when the communication is “intentionally overheard or recorded” by law enforcement officers (CPL 700.05[3][a]; see CPL 700.35[1]). Here, the eavesdropping warrants were executed in Kings County, New York, where the communications were intercepted by the New York City Police Department … . Therefore, under the applicable provisions of the Criminal Procedure Law, a Justice of the Supreme Court, Kings County, had jurisdiction to issue the eavesdropping warrants.

Moreover, we reject the defendant’s argument that the eavesdropping warrants, which were authorized for the purpose of investigating crimes that were occurring in New York, constituted an unconstitutional extraterritorial application of New York State law … . People v Schneider, 2019 NY Slip Op 07424, Second Dept 10-16-19

 

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MASTER ARBITRATOR’S AWARD SHOULD NOT HAVE BEEN VACATED, REVIEW POWERS OF MASTER ARBITRATOR AND COURT EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the master arbitrator’s award in this no-fault insurance, fraudulent incorporation case should not have been vacated:

“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” … . A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis … . Notably, the master arbitrator’s review power is broader than that of the courts’ because it includes the power to review for errors of law … . In contrast, the courts “generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law, unless it is so irrational as to require vacatur” … .

Here, since Country-Wide submitted evidence tending to support its fraudulent incorporation defense, it cannot be said that the determination of the master arbitrator affirming the original arbitrator’s award lacked evidentiary support. Nor can it be said that the determination to affirm the original arbitrator, who supported her determination with reasons based on the evidence, lacked a rational basis. Thus, even if it was an error of law to conclude that Country-Wide proved its defense as a matter of law … . Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 2019 NY Slip Op 07246, Second Dept 10-9-19

 

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PEDESTRIAN PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE AS SHE WAS CROSSING THE ENTRANCE TO A PARKING LOT; DEFENDANT TESTIFIED HE NEVER SAW THE PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND HER MOTION TO DISMISS DEFENDANT’S AFFIRMATIVE DEFENSE ALLEGING PLAINTIFF WAS COMPARATIVELY NEGLIGENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted, and defendant’s affirmative defense alleged plaintiff was comparatively negligent should have been dismissed. Plaintiff was halfway through the entrance to a parking lot when defendant turned to enter the parking lot:

The injured plaintiff testified at her deposition, a transcript of which was also submitted in support of the plaintiffs’ motion, that she had been walking on the sidewalk along Ardsley Road. She intended to cross the entrance to the parking lot to continue walking on the sidewalk along Ardsley Road. She testified that, before attempting to cross the entrance to the lot, she stopped and looked in both directions to check for approaching vehicles, and that she did not see any vehicles before she stepped into the entrance to the lot.

The plaintiffs also submitted a transcript of the deposition testimony of a nonparty witness who testified that, just before impact, he observed the injured plaintiff turn her body to face the defendants’ vehicle and put her hands up in front of her. He then saw the vehicle strike the injured plaintiff and launch her into the air. The photographs, in conjunction with the testimony of the defendant driver and the nonparty witness, demonstrated that the injured plaintiff was struck after she had already walked more than halfway across the entrance to the parking lot.

A driver is bound to see what is there to be seen with the proper use of his or her senses … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that the defendant driver never saw the injured plaintiff before striking her … . Higashi v M&R Scarsdale Rest., LLC, 2019 NY Slip Op 07240, Second Dept 10-9-19

 

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THE CITY DID NOT DEMONSTRATE THE SALARY PROMISED PLAINTIFF AT THE OUTSET WAS A MISTAKE WHICH HAD BEEN CORRECTED, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT ON HER BREACH OF CONTRACT ACTION SHOULD HAVE BEEN GRANTED; SUPREME COURT’S ANALYSIS UNDER AN “AT-WILL EMPLOYEE” THEORY WAS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city-employer’s motion for summary judgment in this salary dispute should have been denied, and plaintiff-employee’s cross motion for summary judgment should have been granted. When plaintiff applied for the job the Notice of Appointment provided by the city indicated her salary would be approximately $47,000. However plaintiff was being paid approximately $41,000. The city argued the $47,000 figure was a mistake, but the evidence submitted by the city did not support that argument. In addition the city argued that plaintiff was an at-will employ. But the Second Department noted that this is a contract action for unpaid salary to which the “at-will employee” concept was not applicable:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and resulting damages … . The Supreme Court’s reliance on the body of law concerning at-will employees was error. The plaintiff’s breach of contract cause of action solely seeks to recover unpaid, agreed-to compensation for services rendered while she was actually employed by the City, and thus, the at-will doctrine does not apply … . …

At best, the City’s evidence suggests that after the plaintiff was hired at the Step 4 level, some budgeting concern caused the City to seek to readjust the plaintiff’s salary to a Step 1 level. The City, however, produced no evidence demonstrating that there was any error in the Notice of Appointment or that there was any lawful change to the plaintiff’s salary. Rather, it appears that the City simply reduced the plaintiff’s salary to the Step 1 level, even though she was appointed at the Step 4 level. The City failed to demonstrate that it had any lawful basis for unilaterally changing the plaintiff’s salary. Since the City failed to make a prima facie showing of entitlement to judgment as a matter of law, the Supreme Court should have denied its motion for summary judgment dismissing the complaint. Ayers v City of Mount Vernon, 2019 NY Slip Op 07230, Second Dept 10-9-19

 

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BANK’S EVIDENCE OF STANDING DID NOT MEET THE CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court. determined that the bank’s motion for summary judgment should not have been granted because the evidence of standing submitted by the bank did not meet the requirements of the business records exception to the hearsay rule:

… [T]he plaintiff failed to meet its prima facie burden of establishing that it had standing …. The affidavits of Andrea Kruse, vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff’s servicer, failed to lay the proper foundation under the business records exception to the hearsay rule to support her assertion that the note was transferred to the plaintiff’s custodian prior to commencement of the action and remained in the possession of the plaintiff’s custodian at the time of commencement …. While, in attempting to rely upon the documentary evidence that was annexed to the motion, Kruse averred in her first affidavit that she reviewed the books and records regularly created, maintained, and kept by Wells Fargo, and in her second affidavit that she reviewed the books and records regularly created, maintained, and kept by the plaintiff, she did not attest that she was personally familiar with the plaintiff’s or Wells Fargo’s record-keeping practices and procedures, or that the plaintiff’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business … . US Bank Natl. Assn. v Hunte, 2019 NY Slip Op 07311, Second Dept 10-9-19

 

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