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PROOF DID NOT DEMONSTRATE THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate that the notice requirements of RPAPL 1304 were met:

… Lechtanski [the loan servicer representative] did not have personal knowledge of the purported mailing and failed to make the requisite showing that he was familiar with the plaintiff’s mailing practices and procedures, and therefore, did not establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Moreover, the copy of the notice annexed to the Lechtanski affidavits, while bearing a notation “VIA CERTIFIED AND FIRST CLASS MAIL,” bears no indicia of actual mailing such as postal codes and was unaccompanied by any mailing receipts or tracking information … . Wells Fargo Bank, N.A. v Taylor, 2019 NY Slip Op 01817, Second Dept 3-13-19

 

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30-DAY TIME TO APPEAL WITH RESPECT TO ALL PARTIES IS TRIGGERED BY THE SERVICE OF THE ORDER OR JUDGMENT WITH WRITTEN NOTICE OF ENTRY BY ANY PARTY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined that the 30-day period for filing a notice of appeal (CPLR 5513(a)) is triggered for all parties when any party serves the other parties with the order or judgment appealed from with written notice of entry:

This appeal provides our Court with an occasion to clarify the meaning of CPLR 5513(a). The 1996 amendment to CPLR 5513(a), effective January 1, 1997, requires that an order or judgment be served “by a party” with written notice of entry in order to commence the time to undertake an appeal (L 1996, ch 214, § 1). … [W]e hold that service of the order or judgment with written notice of entry by any party upon the other parties to the action operates to commence the 30-day time to appeal with respect to not only the serving party, but all the parties in the action. * * *​

… [T]he language of CPLR 5513(a) as to who serves notice of entry is not limited to the “prevailing party,” or to “the appealing party,” or to “the party seeking to limit an adversary’s appellate time.” Rather, “a” party, which is unrestricted, necessarily refers to “any” party to an action. As a result, the service of an order or judgment with written notice of entry commences the 30-day time to appeal as to not only the party performing the service, but as to all other parties as well.

Here, the County’s [defendant’s] service on June 17, 2015, of the Supreme Court’s order with written notice of entry commenced the plaintiffs’ time to appeal the order as to all of the defendants, including those who served a notice of entry at a later date, and those who may have served no notice of entry at all. The plaintiffs’ appeal must therefore be dismissed as untimely as to all of the defendants (see CPLR 5513[a]). W. Rogowski Farm, LLC v County of Orange, 2019 NY Slip Op 01815, Second Dept 3-13-19

 

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THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted because the cause of plaintiff’s decedent’s fall could not be identified. The Noseworthy lighter burden of proof did not apply. Although plaintiff’s expert identified defects in the area where plaintiff’s decedent fell, none of the defects were demonstrated to have caused the fall:

Contrary to the plaintiff’s contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendants’ knowledge concerning the cause of the decedent’s accident is no greater than that of the plaintiff … . Even accepting the defects identified in the plaintiff’s expert’s affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions … . ” Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation'” … . Perrelli v Evangelista, 2019 NY Slip Op 01807, Second Dept 3-13-19

 

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RECORDED JAIL PHONE CALLS MAY NOT HAVE RELATED TO THE OFFENSE WHICH WAS THE SUBJECT OF THE TRIAL, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined recordings of jail phone calls made by the defendant should not have been admitted in this criminal possession of a weapon case. It was possible the recordings related to a subsequent weapons charge, not the charge before the jury:

… [T]he timing and content of the telephone calls made it highly unlikely that the defendant was referencing his September 2014 arrest for the instant offense, rather than his subsequent arrest on the unrelated gun possession charge. Moreover, in addition to the lack of relevance of this evidence to the charges in this case, the jury was unaware of the defendant’s subsequent May 2015 arrest, and therefore was unable to properly evaluate the weight to be accorded to the recordings as evidence of the defendant’s guilt of the instant offense. Thus, there was a substantial risk that the jury would be misled into believing that the defendant’s admissions in the telephone recordings referred to the instant offense. The admission of the recordings into evidence placed the defendant in the untenable position of deciding whether to accept this misleading narrative that the telephone recordings referred to the instant offense or disclose his later arrest on a similar gun possession charge, which disclosure itself would have caused him undue prejudice … . People v Robinson, 2019 NY Slip Op 01799, Second Dept 3-13-19

 

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EVIDENCE DEFENDANT’S STEPFATHER APOLOGIZED TO THE ROBBERY VICTIM FOR THE DEFENDANT’S ACTIONS AND THE TESTIMONY ABOUT AN ANONYMOUS INFORMANT’S IDENTIFICATION OF THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED, PROSECUTOR SHOULD NOT HAVE ENCOURAGED INFERENCE OF GUILT BASED ON FACTS NOT IN EVIDENCE, APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, reaching the appellate issues in the interest of justice, determined that improperly admitted evidence warranted a new trial, noting that the prosecutor also acted improperly. The identity of the defendant was a key issue in this robbery case. The victim (Fernandez) should not have been allowed to testify that the defendant’s stepfather told the victim he was sorry for what defendant had done and returned the victim’s keys. Also, the investigating detective should not have been allowed to testify that an anonymous informant had identified the defendant:

There was no showing that the defendant participated in or was in any way connected to his stepfather’s actions … .

… [T]he testimony of an investigating detective recounting a conversation with an anonymous informant, a nontestifying witness, violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution… . The informant reportedly was an eyewitness to the crime and identified the defendant by name. The testimony “went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant” … . …

Upon retrial, we remind the People that, on summation, a prosecutor may not “improperly encourage[ ] inferences of guilt based on facts not in evidence” … . Here, there was no evidence to support the prosecutor’s assertion that Fernandez had identified the defendant as the robber “immediately” by recognizing a distinctive “dot” on the defendant’s face. People v Gonsalves, 2019 NY Slip Op 01792, Second Dept 3-13-19

 

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PLAYGROUND EQUIPMENT ON WHICH PLAINTIFF’S SON WAS INJURED, ACCORDING TO EXPERT EVIDENCE, WAS IN COMPLIANCE WITH APPLICABLE GUIDELINES AND STANDARDS, WAS PROPERLY MAINTAINED AND WAS NONHAZARDOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this playground equipment injury case should have been granted. Plaintiff’s son was injured when his leg was caught in a gap between two platforms:

… [T]he defendants submitted, inter alia, an expert affidavit, which established, prima facie, that the playground apparatus was not in violation of any relevant statutes or safety guidelines, that it was maintained in a reasonably safe condition, that the platforms were nonhazardous, and that the gaps between the platforms did not violate any applicable guidelines or standards … . In opposition, the plaintiff failed to raise a triable issue of fact. Valenzuela v Metro Motel, LLC, 2019 NY Slip Op 01639, Second Dept 3-6-19

 

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PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence of standing did not meet the business record exception to the hearsay rule:

Here, since Thrasher [plaintiff’s loan officer] did not allege that she was personally familiar with the plaintiff’s record-keeping practices and procedures, a proper foundation for the admission of the records was not provided, rendering them inadmissible to establish that the subject note was possessed by or assigned to the plaintiff prior to the commencement of the action. Moreover, even if a proper foundation had been set forth in the Thrasher affidavit, Thrasher’s assertions as to the contents of the records is inadmissible hearsay to the extent that the records she purports to describe were not submitted with her affidavit. While a witness may read into the record from the contents of a document which has been admitted into evidence … , a witness’s description of a document not admitted into evidence is hearsay (seeCPLR 4518[a]…). Furthermore, although the plaintiff submitted an endorsed copy of the note in support of its motion for summary judgment, after having appended an unendorsed copy of the note to the complaint, the plaintiff failed to eliminate a triable issue of fact as to whether the plaintiff was in possession of the original note at the time the action was commenced … . U.S. Bank Natl. Assn. v 22 S. Madison, LLC, 2019 NY Slip Op 01635, Second Dept 3-6-19

 

DEFENDANT DID NOT SHOW A LACK OF CONSTRUCTIVE NOTICE 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. Defendant did not demonstrate the absence of constructive notice:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case … .

Here, the defendant failed to meet its initial burden as the movant … . The defendant failed to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall … . Seedat v Capital One Bank, 2019 NY Slip Op 01632, Second Dept 3-6-19

 

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POLICE OFFICER’S ALLEGED OBSERVATION OF A DRUG DEAL WAS DEEMED INCREDIBLE AS A MATTER OF LAW, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, INDICTMENT DISMISSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress evidence should have been granted and the indictment dismissed in this drug possession case. The police officer’s (Borden’s) testimony that he observed the drug transaction, which took place inside a car, through his rearview mirror, was incredible as a matter of law:

… [W]e find that the People failed to establish the legality of the police conduct in the first instance, as Borden’s testimony was incredible and patently tailored to meet constitutional objections. Borden’s claim that he observed the alleged transaction through his rearview mirror with sufficient clarity to see that the object passed between the occupants of the car was Suboxone strains credulity and defies common sense … . Rather, common experience dictates that the dashboard of the defendant’s vehicle would have obscured Borden’s view of a hand-to-hand transaction between the defendant and the front-seat passenger. Borden’s testimony that the transaction occurred at a height sufficient for “public view” lacked credibility and suggested that his testimony was tailored to meet constitutional objections … . Moreover, the difference in size between the eight-inch by two-inch object Borden claimed to have seen passed between the occupants of the vehicle, and the two-inch by one-inch object recovered … , casts significant doubt on Borden’s testimony that he recognized the object as Suboxone. Accordingly, exercising our independent power of factual review, we conclude that the defendant’s motion to suppress the physical evidence recovered incident to his arrest should have been granted. People v Maiwandi, 2019 NY Slip Op 01618, Second Dept 3-6-19

 

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SANCTIONS PROPERLY IMPOSED FOR BRINGING A FRIVOLOUS LAWSUIT (SECOND DEPT).

The Second Department determined sanctions for frivolous conduct were properly imposed. The action was precluded by collateral estoppel and should not have been brought:

“The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). Conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2] …).

Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was pursuant to 22 NYCRR 130-1.1(a) to impose a sanction upon Miller and his attorney consisting of costs in the form of an attorney’s fee (see 22 NYCRR 130-1.1[a]). Under the circumstances of this case, the court properly determined that Miller and his attorney engaged in frivolous conduct in commencing this action, as it was completely without merit in law, and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Miller v Falco, 2019 NY Slip Op 01589, Second Dept 3-6-19

 

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