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PROOF OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 NOTICE TO THE DEFENDANT WAS INSUFFICIENT, THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof compliance with the Real Property Actions and Proceedings Law (RPAPL) 1304 notice requirements was insufficient:

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … .The statute requires that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304[2]). By imposing these specific mailing requirements, ” the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing,’ which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or 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'” … .

Here, although Swayze [plaintiff’s vice president] stated in her affidavit that the RPAPL 1304 notice was mailed to Saab [defendant] on May 8, 2013, this assertion falls short of constituting admissible evidence sufficient to demonstrate prima facie that the notice was actually mailed in the manner required by the statute. Swayze did not claim that she personally mailed the notice to Saab. Further, she did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and, therefore, did not establish the existence of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Central Mtge. Co. v Canas, 2019 NY Slip Op 04909, Second Dept 6-19-19

 

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PROCESS SERVER’S AFFIDAVIT OF SERVICE WAS REBUTTED BY SUFFICIENT EVIDENCE TO WARRANT A HEARING ON WHETHER DEFENDANT WAS SERVED WITH THE SUMMONS AND COMPLAINT IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the process server’s affidavit was rebutted by sufficient proof to warrant a hearing on whether defendant, David, was served with the summons and complaint in this foreclosure action:

A process server’s affidavit of service gives rise to a presumption of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … . However, “[w]here a defendant submits a sworn denial of receipt of process containing specific facts to rebut the statements in the process server’s affidavit, the presumption of proper service is rebutted and an evidentiary hearing is required” … .

Here, an affidavit of service, in which the process server attested to having served David with copies of the summons and complaint by personal delivery to him at his residence at the subject property in Williston Park on April 16, 2014, at 8:08 p.m., constituted prima facie evidence of proper service on David … . However, in support of the motion, David submitted an affidavit of Patricia, who attested that David suffered a brain aneurysm in April 2008 and had resided in a nursing home in Glen Cove since July 2008 and, thus, could not have been personally served at the residence on April 16, 2014. These facts were supported by documents submitted with the affidavit, including minutes of a guardianship proceeding dated June 8, 2012, wherein the court noted that David resided in a nursing home in Glen Cove. Caliber Home Loans, Inc. v Silber, 2019 NY Slip Op 04907, Second Dept 6-19-19

 

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THE COMPLAINT STATED A CAUSE OF ACTION TO DISGORGE LEGAL FEES PAID TO LAWFIRM WHICH IS ALLEGED TO HAVE REPRESENTED ADVERSE PARTIES IN THE SAME MATTER; THE ACTION TO DISGORGE FEES IS INDEPENDENT FROM ANY ACTION ALLEGING LEGAL MALPRACTICE OR BREACH OF A FIDUCIARY DUTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for forfeiture of legal fees on conflict of interest grounds:

The complaint alleged that the plaintiff’s decedent retained the defendant in 2005 to, among other things, analyze her ownership interest in Wilson [Corporation], including her right to certain retained earnings in the sum of $20 million. The complaint further alleged that, in January 2007, the defendant began acting as Wilson’s corporate counsel, and, beginning in 2008, performed legal services for Wilson regarding the decedent’s right to those retained earnings. * * *

“An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered” … . A cause of action for forfeiture of legal fees based on an attorney’s discharge for cause due to ethical violations may be maintained independent of a cause of action alleging legal malpractice or breach of fiduciary duty, and does not require proof or allegations of damages … .

… [T]he complaint seeks forfeiture of legal fees paid to the defendant between January 2007 and August 2009 in connection with the plaintiff’s decedent’s claim against Wilson for retained earnings. The complaint alleges that the decedent retained the defendant in January 2007 to recoup the retained earnings from Wilson, that the defendant also represented and performed legal work for Wilson on that issue between 2008 and 2009, that the interests of the decedent and Wilson on that issue were adverse, and that the dual representation violated rule 1.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). The complaint further alleged that, as a result of its previous dual representation, the defendant was disqualified from representing the decedent’s estate in a 2009 turnover proceeding against Wilson to collect the retained earnings. Contrary to the determination of the Supreme Court, these allegations are sufficient to state a viable cause of action to disgorge legal fees … . Baugher v Cullen & Dykman, LLP, 2019 NY Slip Op 04904, Second Dept 6-19-19

 

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THE PEOPLE DID NOT PROVE THE POLICE OFFICER DEFENDANT PUNCHED WAS ENGAGED IN A LAWFUL DUTY AT THE TIME OF THE ASSAULT, THE PEOPLE ARE HELD TO THE ‘HEAVIER BURDEN’ IN THE DEFINITION OF ‘LAWFUL DUTY’ PROVIDED TO THE JURY WITHOUT OBJECTION, DEFENDANT’S ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department reversed defendant’s assault conviction. Defendant and his brother were sitting on an elevated subway grate when they were approached by two police officers. Defendant’s brother became angry, telling one of the officers to leave him alone and yelling. Defendant restrained his brother, telling him to calm down. At some point defendant suddenly punched one of the police officers. The jury was instructed that, to find the defendant guilty of a violation of Penal Law 120.05(3), the injured police officer must have been engaged in a lawful duty at the time of the assault. The definition of “lawful duty” provided to the jury included a “heavier burden” of proof, to which the People must be held because there was no objection to the instruction. Pursuant to the law as provided to the jury, defendant’s assault conviction was against the weight of the evidence:

Since the People failed to register any objection to the Supreme Court’s supplemental charge, they were bound to satisfy the heavier burden of proof contained therein … , and we must weigh the evidence in light of the elements of the crimes as charged to the jury without objection … .

The consistent testimony of the two police officers shows that they were not in the process of arresting the defendant when the assault occurred. Moreover, while the trial evidence establishes that the defendant’s brother was yelling profanities at the female officer and displaying irate behavior, neither of the officers testified that they intended at any time to arrest the defendant’s brother for any offense, or were attempting to do so at the time of the assault. Under these circumstances, and particularly in light of the highly specific supplemental charge given by the trial court on the meaning of “lawful duty,” the evidence was factually insufficient to prove that the female officer was engaged in a lawful duty, as that term was defined to the jury by the Supreme Court, at the time of the assault by the defendant … . People v Truluck, 2019 NY Slip Op 04969, Second Dept 6-19-19

 

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THE ROBBERY VICTIM’S IDENTIFICATION OF DEFENDANT IN A PHOTO ARRAY AFTER THE POLICE HAD SHOWN THE ROBBERY VICTIM A CELL PHONE PHOTO DEPICTING THE DEFENDANT USING A TASER ON SOMEONE SHOULD HAVE BEEN SUPPRESSED, THE ROBBER HAD THREATENED THE VICTIM WITH A TASER (SECOND DEPT).

The Second Department, reversing defendant’s conviction for one of two robberies charged in the indictment, determined the pretrial identification of the defendant by the robbery victim, Fisher, should have been suppressed. The police were given a cell phone found at the robbery scene. The robber had used a Taser in the Fisher robbery. In the cell phone was a photo of a man using a Taser on a person. Fisher told the police the man in the photo using a Taser was the man who robbed him. Fisher subsequently identified the defendant in a photo array. Even though Fisher’s in-court identification of defendant was deemed admissible, the suppression error was not harmless:

… [T]he procedure employed by the detective in showing Fisher the cell phone videos was a police-arranged identification procedure, even though the police did not arrange the content of the videos on the phone. The procedure by which Fisher viewed the videos occurred at the “deliberate direction of the State,” and not as a result of mere happenstance … . The People failed to meet their initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness created by the video identification procedure. By showing Fisher the cell phone and telling him that the phone was recovered from the scene of the robbery, the detective suggested that the phone may belong to one of the perpetrators of the robbery. One of the videos portrayed an individual using a taser on someone else, which was similar to Fisher’s description of the circumstances of the robbery. Fisher identified the defendant’s photograph in a photo array only after he was shown the video. Further, contrary to the People’s contention, it cannot be said that the video did not single out or portray the individual with the taser in a negative light. The video portrayed the individual committing a violent criminal act against another person … . Accordingly, the court should have suppressed the video identification on the ground that the identification procedure was unduly suggestive. People v Jones, 2019 NY Slip Op 04966, Second Dept 6-19-19

 

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DEFENDANTS DID NOT SHOW THERE WAS A COMPELLING NEED FOR DISCOVERY OF ‘ALCOHOL/DRUG TREATMENT/MENTAL HEALTH INFORMATION/HIV-RELATED INFORMATION’ IN THIS SLIP AND FALL CASE, DISCOVERY REQUEST SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the defendants request for discovery of “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information” in this slip and fall case was not supported by evidence of a compelling need:

“[A] party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue” … However, Public Health Law § 2785(1) provides that, “[n]otwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information,” and the only exception to that prohibition that is pertinent in this case requires an application showing “a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding” (Public Health Law § 2785[2][a]).

Here, the defendants failed to proffer any showing of a compelling need for disclosure related to “HIV-Related Information.” Further, the defendants failed to submit an expert affidavit or any other evidence that would establish a connection between “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information,” and the cause of the accident, and failed to make any effort to link any such information to the plaintiff’s ability to recover from his injuries or his prognosis for future enjoyment of life … . Nesbitt v Advanced Serv. Solutions, 2019 NY Slip Op 04961, Second Dept 6-19-19

 

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FATHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO BE HEARD BEFORE THE SUSPENSION OF HIS COMMITMENT TO JAIL FOR NONPAYMENT OF CHILD SUPPORT WAS REVOKED; THE ISSUE IS APPEALABLE EVEN THOUGH FATHER HAS SERVED HIS TERM OF INCARCERATION (SECOND DEPT).

The Second Department, reversing Family Court, determined father should have been given the opportunity to be heard and present witnesses on the issue of whether good cause existed for the revocation of the suspension of his commitment to jail for nonpayment of child support. The court noted that the matter was not academic, even though father has already served his term of incarceration:

… “[D]ue to the enduring consequences which may potentially flow from the revocation of the order suspending the father’s commitment” … , these appeals are not academic, even if the father has served his term of incarceration before the appeals are determined.

Turning to the merits, “[t]he court may suspend an order of commitment upon reasonable conditions and is also authorized to revoke such suspension at any time for good cause shown” (… see Family Ct Act § 455[1]). However, given the liberty interest at stake, the Family Court, before revoking a suspension, must provide to a respondent an opportunity to be heard and to present witnesses on the issue of whether good cause exists to revoke the suspension … . Here, because the father was deprived of this opportunity, we must reverse the orders appealed from and remit the matter to the Family Court, Kings County, for a hearing and a determination thereafter of whether good cause exists to revoke the suspension. Matter of Zhuo Hong Zheng v Hsin Cheng, 2019 NY Slip Op 04958, Second Dept 6-19-19

 

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MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF MOTHER’S NEGLECT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner’s motion for summary judgment against mother on the issue of neglect should have been denied:

“[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner’s prima facie showing of neglect as a matter of law and the respondent’s failure to raise a triable issue of fact in opposition to the motion” … . “Summary judgment, of course, may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function” … .

Here, in support of that branch of its motion which was for summary judgment against the mother on the issue of neglect of the subject child, the petitioner included the evidence submitted at a hearing held pursuant to Family Court Act § 1028. At that hearing, the mother, who is deaf and communicated through a sign language interpreter, gave various explanations for the scratches and other marks on the child’s skin. The mother testified that she had difficulty controlling the child, who has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder, and that she accidentally scratched the child while trying to restrain him. Under these circumstances, the evidence at the hearing revealed triable issues of fact as to whether the mother neglected the child. Matter of Joseph Z. (Yola Z.), 2019 NY Slip Op 04957, Second Dept 6-19-19

 

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MOTHER’S MOTION TO VACATE A FACT-FINDING OF NEGLECT WITHOUT ADMISSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate a neglect fact-finding without admission:

… [T]he mother moved pursuant to Family Court Act § 1061 to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a), found that she neglected the children and imposed certain conditions upon her custody of them. The Family Court denied the mother’s motion, and the mother appeals.

Pursuant to Family Court Act § 1061, the Family Court may, for good cause shown, set aside, modify, or vacate any order in the course of a proceeding under article 10 of the Family Court Act … . “As with an initial order, the modified order must reflect a resolution consistent with the best interests of the children after consideration of all relevant circumstances, and must be supported by a sound and substantial basis in the record” … .

Here, the mother demonstrated good cause to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a), found that she neglected the children and imposed certain conditions upon her custody of them. The mother demonstrated that she had successfully completed the court-ordered programs, that she had fully complied with the conditions of the order of disposition, and that the requested modification of the order of fact-finding and disposition was in the best interests of the children … . Matter of Emma R. (Evelyn R.), 2019 NY Slip Op 04948, Second Dept 6-19-19

 

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PETITIONER’S APPLICATION TO CHANGE THE DESIGNATION OF HIS RACE/NATIONALITY PROPERLY DENIED; EX PARTE ORDERS ARE NOT APPEALABLE, NOTICES OF APPEAL TREATED AS APPLICATIONS FOR REVIEW PURSUANT TO CPLR 5704 (a) (SECOND DEPT).

The Second Department determined petitioner’s application to change his race/nationality from “black/African American” to “Moor/Americas Aboriginal” was properly denied. The court noted that an ex parte order is not appealable but deemed the notices of appeal applications pursuant to CPLR 5704 (a):

“An ex parte order is not appealable … . However, under the circumstances of this case, we deem it appropriate to treat the instant notices of appeal as applications for review pursuant to CPLR 5704(a) … .

We agree with the Supreme Court’s denial of that branch of the petition which was to change the petitioner’s race/nationality, as the petitioner presented no authority for the court to grant him such relief. Article 6 of the Civil Rights Law, which governs petitions for leave to assume another name, does not provide such authority. Further, a person’s race is a matter of self-identification. As to nationality, the sole means by which the petitioner may renounce his nationality as a United States citizen is to satisfy one of the conditions set forth in 8 USC § 1481(a) … . The petitioner made no showing that he met any of these conditions. Matter of Keis, 2019 NY Slip Op 04944, Second Dept 6-19-19

 

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