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MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that the denial of a cross motion as untimely was improper because plaintiff did not mail the motion papers 21 days before the return date:

The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days’ notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (seeCPLR 2103[b][2]; CPLR 2214[b]… ). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215). Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349, Second Dept 10-31-18

CIVIL PROCEDURE (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))/CROSS MOTIONS (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))/CPLR 2013, 2014, 2015 (MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT))

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TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT).

The Second Department dismissed the counts of the sexual-offense indictment which were rendered duplicitous by the trial evidence. The counts alleging sexual intercourse with the complainant when she was 13 were not duplicitous on the face of the indictment, but the complainant testified sexual intercourse occurred at least 20 times during each month alleged in the relevant counts. The convictions for the counts where the complainant testified only one act occurred were upheld:

Counts 28 through 47 and counts 49 through 58 of the indictment are valid on their face. However, at trial, the complainant testified that when she was 13 years old, the then 26-year-old defendant had sexual intercourse with her and engaged in oral sex with her at least 20 times per month, i.e., at least 20 times during the one-month period encompassed by each of those counts. Thus, the complainant’s testimony demonstrated that each of those counts was premised upon multiple acts of rape and criminal sexual act, and they are, therefore, void for duplicitousness … . Accordingly, we vacate the convictions of rape in the second degree under counts 28 through 47 of the indictment and criminal sexual act in the second degree under counts 49 through 58 of the indictment, vacate the sentences imposed thereon, and dismiss those counts in the indictment.

The defendant was also charged under count 27 of the indictment with committing rape in the second degree (Penal Law § 130.30[1]) by, being 18 years old or more, engaging in an act of sexual intercourse with a person less than 15 years old between March 11, 2011, and March 31, 2011. Count 48 of the indictment charged the defendant with committing criminal sexual act in the second degree …  by, being 18 years old or more, engaging in oral sexual conduct with a person less than 15 years old between March 11, 2011, and March 31, 2011.

Where a crime, such as rape or criminal sexual act, “is made out by the commission of one act, that act must be the only offense alleged in the count” … . Contrary to the defendant’s contention, counts 27 and 48 of the indictment were not duplicitous on their face, since they each charged the defendant with a single act … . Further, since the complainant testified at trial that a single act of rape and a single oral sexual act occurred during the period of March 11, 2011, to March 31, 2011, acts which formed the basis of counts 27 and 48 of the indictment, these counts are not duplicitous … . People v Gerardi, 2018 NY Slip Op 07325, Second Dept 10-31-18

CRIMINAL LAW (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/INDICTMENTS (DUPLICITOUS,  TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/DUPLICITOUS INDICTMENTS (EVIDENCE, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))/RAPE (DUPLICITOUS INDICTMENT, TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT))

COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the company which hired plaintiff’s employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff’s fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff’s work, even if it did not exercise that authority. Park Plaza was not entitled to summary judgment on its indemnification action against New York Plumbing because it did not demonstrated New York Plumbing exercised actual supervision over plaintiff’s work. Plaintiff fell from the top of a temporary oil storage tank which was being emptied and cleaned:

Contrary to New York Plumbing’s contention, the plaintiff demonstrated, prima facie, that New York Plumbing had the authority to exercise control over the plaintiff’s work, even if it did not actually do so, and that New York Plumbing was therefore a proper defendant under the Labor Law … . …

Moreover, the plaintiff demonstrated that he was engaged in a protected activity under Labor Law §§ 240(1) and 241(6) when he was injured … .

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against the Park Plaza defendants [the property owner] and New York Plumbing. The plaintiff submitted evidence that he fell from a 12-to 16-foot high surface, and that he had not been provided with safety devices to protect him from such a fall … . …

The plaintiff’s Labor Law § 241(6) cause of action was predicated on an alleged violation of 12 NYCRR 23-1.7(d) … . The Park Plaza defendants and New York Plumbing failed to establish, prima facie, that a slippery condition on the oil tank was not a proximate cause of the plaintiff’s fall … .

Finally, the Park Plaza defendants did not demonstrate their prima facie entitlement to judgment as a matter of law on their cross claim for common-law indemnification against New York Plumbing, as their submissions did not establish, prima facie, that New York Plumbing exercised actual supervision over the plaintiff’s work … . Padilla v Park Plaza Owners Corp., 2018 NY Slip Op 07317, Second Dept 10-31-18

LABOR LAW-CONSTRUCTION LAW (COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))/INDEMNIFICATION (LABOR LAW-CONSTRUCTION LAW, COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT))

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REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff had the statutory right to bring an action to cancel of record certain assignments of mortgage:

The Supreme Court should not have granted those branches of the separate motions of the defendants, which were pursuant to CPLR 3211(a) to dismiss the causes of action to cancel of record the subject assignments of mortgage insofar as asserted against each of them on the ground that the plaintiffs lacked standing. Real Property Law § 329 provides that “[a]n owner of real property . . . may maintain an action to have any recorded instrument in writing relating to such real property . . . other than those required by law to be recorded . . . declared void or invalid, or to have the same canceled of record as to said real property.” The plaintiffs, as owners of the subject property, have standing under Real Property Law § 329 to challenge the recorded assignments and seek to have them removed as a cloud on their title … . Silverberg v Bank of N.Y. Mellon, 2018 NY Slip Op 07167, Second Dept 10-24-18

REAL PROPERTY LAW (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/FORECLOSURE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))/ASSIGNMENTS OF MORTGAGE (REAL PROPERTY LAW 329 PROVIDES THAT THE OWNER OF PROPERTY CAN BRING ACTIONS TO CANCEL RECORDED ASSIGNMENTS OF MORTGAGE, SUPREME COURT SHOULD NOT HAVE GRANTED DEFENDANTS’ MOTIONS TO DISMISS ON THE GROUND THE PLAINTIFF LACKED STANDING (SECOND DEPT))

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DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

… [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]…). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

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IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction for aggravated unlicensed operation of a motor vehicle, determined that the testimony of a supervisor from the NYS Department of Motor Vehicles (DMV), alleging that notice of the revocation of defendant’s license was mailed to defendant, violated defendant’s right to confront the witnesses against him because the testimony was not based upon first hand knowledge:

To establish that the defendant operated a motor vehicle while knowing that his license was suspended or revoked, the People presented the testimony of a supervisor of the New York State Department of Motor Vehicles (hereinafter the DMV), who testified about the DMV’s process of mailing notices of revocation and/or suspension. The DMV supervisor testified that an order of suspension was mailed to the defendant in 1999, and she read into the record an affidavit, sworn to in 2012, which detailed the procedures related to mailing these notices and also stated, “upon information and belief,” that the notice was in fact mailed to the defendant in 1999. However, the DMV supervisor herself admittedly had no personal knowledge of the mailing to the defendant, and the People did not produce the original 1999 affidavit of mailing.

The Supreme Court should not have permitted this testimony, as it violated the defendant’s right of confrontation (see CPLR 4518[a]; CPL 60.10;… ) The defendant was never given the opportunity to cross-examine a DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of defendant’s driving record. The DMV supervisor’s testimony was improperly allowed to establish an essential element of the crime. The court, in permitting this testimony, failed to ensure that the defendant’s Sixth Amendment right of confrontation was protected … . People v Stokeling, 2018 NY Slip Op 07158, Second Dept 10-24-18

CRIMINAL LAW (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT)/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/VEHICLE AND TRAFFIC LAW  (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))

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DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s convictions for two separate robberies which were tried together, determined that one of the lineup identification procedures violated defendant’s right to counsel. The detective who conducted the lineup was aware defendant had an attorney but did not notify the attorney of the impending lineup:

The detective who conducted the lineup violated the defendant’s right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

… [T]he paramount consideration is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its verdict of guilt on the remaining counts in a meaningful way … . Here, we cannot conclude from the evidence presented that there was no such reasonable possibility. People v Johnson, 2018 NY Slip Op 07147, Second Dept 10-24-18

CRIMINAL LAW (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/LINEUPS (RIGHT TO COUNSEL, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))

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OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff slipped and fell on water which appeared to be coming from the bathroom door in the leased premises:

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a “duty imposed by statute or assumed by contract or a course of conduct” … . Here, the plaintiff alleged the violation of a duty imposed by Administrative Code of the City of New York § 28-301.1, which provides that the owner of a building “shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner” … .. The defendant failed to meet its prima facie burden of demonstrating that it completely relinquished possession and control of the basement area of the building, such that it cannot be held liable under that Administrative Code provision for injuries caused by a defective condition therein … . Nieves v Pennsylvania, LLC, 2018 NY Slip Op 07134, Second Dept 10-24-18

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because it was not limited to the lessee’s negligence:

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-2013(h) (Local Law 1) … placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased premises where children under the specified age resided… . The owner of a cooperative corporation was considered the owner of a multiple dwelling for purposes of Local Law 1… .

Contrary to the [lessee’s] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed to the infant plaintiff’s injuries… . However, under the circumstances presented, [the owner] may not seek contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary lease. “A broad indemnification provision in a lease . . . which is not limited to the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321” … . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18

CONTRACT LAW (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/LANDLORD-TENANT (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/NEGLIGENCE  (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/TOXIC TORTS (LEAD PAINT, (BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))/INDEMNIFICATION (LEASE, BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT))

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PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. Plaintiff did not provide sufficient proof demonstrating it provided the notice required by RPAPL 1304:

… [T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting his own affidavit attesting that he had not received any notice pursuant to RPAPL 1304 … . In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit “an affidavit of service, . . . proof of mailing by the post office, evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” … , 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” … . Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating “Certified Article Number” and “Senders Record” and listing a 20-digit number on the top of the letter … . Thus, since the plaintiff did not raise a triable issue of fact in opposition to the defendant’s prima facie showing that the plaintiff failed to satisfy the condition precedent of proper service of RPAPL 1304 notice upon him … . Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, NOTICE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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