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IN DISMISSING FATHER’S PETITION AND GRANTING MOTHER’S MOTION TO TERMINATE HER CHILD SUPPORT, FAMILY COURT RELIED ON HEARSAY AND EVIDENCE NOT TESTED BY CROSS-EXAMINATION, MATTER SENT BACK FOR A HEARING ON FATHER’S PETITION TO MODIFY CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for modification of child support should not have been denied and mother’s motion to terminate her child support obligations should not have been granted based on hearsay and evidence not tested by cross-examination:

… [F]ather filed a petition to modify the child support order … . The father asserted, as a change of circumstance, that the child was living with him. The mother moved for summary judgment dismissing the father’s petition, and for termination of her child support obligation, on the ground of parental alienation, contending that the father had unjustifiably frustrated and interfered with her relationship with the child. * * *

The Family Court, in making its determination that the father alienated the child from the mother, improperly relied on inadmissible information that had been provided at court conferences in earlier proceedings before a different judge. The court also improperly relied on hearsay statements and conclusions by an expert, whose credibility was not tested by either party, from an earlier forensic evaluation, and on statements and conclusions by two therapists, whose opinions and credibility were not tested by either party, made at a conference before a different judge … .

Accordingly, we disagree with the Family Court’s determination to grant the mother’s motion for summary judgment and for termination of her child support obligation, we reinstate the father’s petition to modify the child support order … , and we remit the matter to the Family Court … for a hearing on that petition. Matter of McNichol v Reid, 2019 NY Slip Op 07073, Second Dept 10-2-19

 

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THE BANK DID NOT SUBMIT PROOF OF COMPLIANCE WITH THE FILING REQUIREMENTS OF RPAPL 1306 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 that the bank’s motion for summary judgment in this foreclosure action should not have been granted because the bank did not submit proof of compliance with the filing requirements of RPAPL 1306:

Pursuant to RPAPL 1306, lenders “shall file with the superintendent of financial services . . . within three business days of the mailing of the notice required by [RPAPL 1304]” a form containing certain information regarding the borrower and the mortgage (RPAPL 1306[1]; see RPAPL 1306[2]). RPAPL 1306(1) further states that “[a]ny complaint served in [an action] initiated pursuant to [RPAPL article 13] shall contain, as a condition precedent to such [action], an affirmative allegation that at the time the [action] is commenced, the plaintiff has complied with the provisions of this section.”

Here, in support of its motion, the plaintiff failed to submit any evidence of compliance with RPAPL 1306. JPMorgan Chase Bank, N.A. v Lyon, 2019 NY Slip Op 07060, Second Dept 10-2-19

 

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DEFENDANT IN THIS FORECLOSURE ACTION WAS A ‘BORROWER’ AND THEREFORE WAS ENTITLED TO THE 90-DAY NOTICE REQUIRED BY RPAPL 1304; THE BANK HAD ARGUED SHE WAS NOT A BORROWER BECAUSE SHE DID NOT SIGN THE NOTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action was a “borrower” within the meaning of RPAPL 1304 and therefore she was entitled to the required 90-day notice, which she did not receive. That bank argued that she was not a borrower because only her deceased husband signed the note. However she was named on the mortgage and she signed the mortgage:

While RPAPL 1304 provides that the notice shall be sent to the “borrower,” that term is not defined in the statute (see RPAPL 1304). It is undisputed that only the defendant’s deceased husband, Solomon Forman, is identified as a “borrower” in the note which is secured by the mortgage. That is not determinative in this case. In the mortgage instrument, the defendant is referred to as a borrower. On the first page of the mortgage instrument, under the heading entitled “Words Used Often in this Document,” the defendant is identified, along with her husband, as ” Borrower.'” The defendant is also designated as “Borrower” under her signature on the signature page of the mortgage instrument. While the plaintiff contends that this standard mortgage form mischaracterizes the defendant as a borrower, any ambiguities in the language of the document must be construed against the plaintiff, as the plaintiff is the party who supplied the document … . Bank of N.Y. Mellon v Forman, 2019 NY Slip Op 07045, Second Dept 10-2-19

 

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PLAINTIFF WAS NOT INJURED BY THE CONDITION HE WAS HIRED TO FIX IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff, a cleaner employed by a nonparty to clean a NYC school, tripped and fell as he was walking across the auditorium stage to turn on the lights. The defendant argued it could not be liable because plaintiff was injured by the condition he was responsible to fix:

A plaintiff cannot recover against a defendant for common-law negligence if he or she was injured by the dangerous condition which he or she had been hired to remedy … . Here, the evidence submitted by the defendants established that the plaintiff was merely walking to the rear of the stage in order to turn on the lights in the auditorium. Thus, the plaintiff was not engaged in the type of cleaning activity aimed at eliminating the risk presented by the test board that had been left on the floor … . Additionally, the plaintiff’s duty to clean visible debris off the floor had not yet arisen, because the plaintiff testified that due to the dim lighting condition in the auditorium, he had not observed the test board before his fall. Torres v Board of Educ. of the City of New York, 2019 NY Slip Op 06818, Second Dept 9-25-19

 

NEITHER A CERTIFICATION ORDER NOR A STIPULATION EXTENDING THE DATE FOR FILING A NOTE OF ISSUE MET THE REQUIREMENTS OF A 90-DAY NOTICE; THE DISMISSAL OF THE ACTION WAS INVALID; THE MOTION TO RESTORE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action was not properly dismissed pursuant to CPLR 3216 and plaintiff’s motion to restore the action to the calendar should have been granted:

… [T]he Supreme Court issued a certification order which … certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action may be dismissed. (CPLR 3216).” Thereafter, the parties executed a stipulation dated June 15, 2017, extending the date by which the note of issue must be filed to September 7, 2017. The action was ministerially dismissed on June 21, 2017, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … .

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the court, on its own motion, to dismiss the action for failure to prosecute … . Furthermore, contrary to the determination of the Supreme Court, the subsequent stipulation … , which purported to extend the plaintiff’s deadline for filing a note of issue … , did not constitute a valid 90-day demand … .

Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . Rosenfeld v Schneider Mitola LLP, 2019 NY Slip Op 06813, Second Dept 9-25-19

 

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WAIVER OF APPEAL INVALID; MATTER REMITTED FOR THE STATUTORILY REQUIRED FINDINGS FOR THE DENIAL OF DEFENDANT’S SUPPRESSION MOTION; APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid. He therefore could challenge the denial of his suppression motion on appeal. However, Supreme Court did not make the statutorily required findings of fact and conclusions of law. The matter was remitted for findings on all the issues raised by the suppression motion, and the appeal is held in abeyance:

When the Supreme Court attempted to explain to the defendant the waiver of the right to appeal, it improperly conflated the right to appeal with rights automatically forfeited by a plea of guilty … . As such, the record does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty … . Moreover, although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel … . …

“[T]he CPL article 710 suppression procedure involves an adjudication based on mixed questions of law and fact”… . “The suppression court must make findings of fact, often requiring it to assess the credibility of witnesses” … . “Regardless of whether a hearing was conducted, the court, upon determining [an article 710] motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination” (CPL 710.60[6] …). People v Harris, 2019 NY Slip Op 06795, Second Dept 9-25-19

 

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case should not have been granted:

Although the photographs submitted in support of the petition may have demonstrated that the City had prior knowledge of the defect in the asphalt, “actual knowledge of the defect is not tantamount to actual knowledge of the facts constituting the claim, since the City was not aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability” … .

A lack of due diligence in determining the identity of the owner of the property upon which the subject accident occurred is not a reasonable excuse for the failure to serve a timely notice of claim … . …

In addition, the petitioner failed to satisfy her initial burden of showing that the City would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay … . Matter of Perez v City of New York, 2019 NY Slip Op 06774, Second Dept 9-25-19

 

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A FRAMED ISSUE HEARING IS REQUIRED TO DETERMINE IF THE CARRIER PROPERLY DISCLAIMED COVERAGE IN THIS TRAFFIC ACCIDENT CASE ON THE GROUND THAT ITS INSURED’S CAR HAD BEEN STOLEN; THE UNINSURED MOTORIST CARRIER’S PETITION FOR A TEMPORARY STAY OF ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a framed-issue hearing was required to determined if the insurer, National General, properly disclaimed coverage in this traffic accident case. The insured vehicle, owned by Singh, left the scene of the accident. National General disclaimed coverage alleging the vehicle had been stolen at the time of the accident. Santos, the driver of the car struck by the Singh car, then made a demand for arbitration of uninsured motorist against his insurer, Country-Wide. Country-Wide then brought the underlying petition to stay arbitration which was denied. Country-Wide appealed:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden is on the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

… [T]the petitioner met its initial burden by submitting evidence establishing that at the time of the accident the Singh vehicle was covered by a policy of insurance issued by National General … . National General’s disclaimer letter, submitted by Country-Wide in support of its petition, constituted prima facie evidence as to the existence of a policy of insurance covering Singh’s vehicle at the time of the accident. That same letter was sufficient to raise a triable issue of fact as to the validity of National General’s disclaimer … . “Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission” … . “[E]vidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use” … . Under these circumstances, a framed-issue hearing is necessary to determine whether National General properly disclaimed coverage of Singh’s vehicle … . Matter of Country-Wide Ins. Co. v Santos, 2019 NY Slip Op 06767, Second Dept 9-25-19

 

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ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (New York City Housing Authority’s, NYCHA’s) motion for summary judgment in this slip and fall case should not have been granted. Plaintiff’s daughter, who witnessed the fall, provided sufficient evidence of the sidewalk defect:

“If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation”  … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall” … . “It only means that a plaintiff’s inability to establish the cause of his or her fall — whether by personal knowledge or by other admissible proof — is fatal to a cause of action based on negligence” … . …

In support of its motion, NYCHA submitted a transcript of the deposition testimony of the plaintiff’s daughter, Galina Moiseyeva (hereinafter Galina), who testified that she saw the plaintiff fall because of a “crack” or “gap” in the sidewalk, which made the sidewalk a “different level.” Further, Galina, who lived with the plaintiff in the premises abutting the sidewalk, testified that she walked along the sidewalk while traveling to and from work, and was previously aware of the alleged crack in the sidewalk. Contrary to NYCHA’s contentions, the alleged failure of the plaintiff and Galina to identify the exact location of the plaintiff’s alleged fall on a photograph shown at their depositions and hearings pursuant to General Municipal Law § 50-h, which photograph was taken the day after the alleged accident occurred and after NYCHA had allegedly covered the subject part of the sidewalk with plywood, did not establish, prima facie, that the plaintiff is unable to identify the cause of her fall. Under the circumstances, NYCHA failed to eliminate triable issues of fact as to whether the plaintiff fell due to the alleged defective condition of the sidewalk … . Moiseyeva v New York City Hous. Auth., 2019 NY Slip Op 06766, Second Dept 9-25-19

 

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LANDLORD DID NOT SUBMIT SUFFICIENT PROOF THAT THE LEASE REQUIRED THE TENANT TO REMOVE ICE AND SNOW, THEREFORE THE OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the out-of-possession landlord’s motion for summary judgment in this slip and fall case should not have been granted. The landlord did not submit a copy of the (expired) lease:

“Generally, when a tenant remains in possession [of the leased premises] after the expiration of a lease, pursuant to common law, there is implied a continua[tion] of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument”‘… . By failing to submit a copy of the expired lease in support of their motion, the defendants failed to establish, prima facie, that they had no contractual obligation to remove snow and ice from the property … . Even assuming that neither the plaintiff nor the defendants have a copy of the expired lease in their possession, the defendants inexplicably failed to submit a copy of a lease entered into between them and other tenants of the property, notwithstanding the deposition testimony of the defendant … that he has rented the property since he purchased it in 1996, that he entered into a lease with each tenant, and that the leases specifically provided that it was the tenants’ responsibility to remove snow and ice. Miske v Selvaggi, 2019 NY Slip Op 06765, Second Dept 9-25-19

 

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