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SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:

“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .

Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met, [t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/ATTORNEYS  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/LAW OFFICE FAILURE  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/BILL OF PARTICULARS (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))

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SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined (1) seller did not demonstrate the time of the essence letter gave buyer sufficient time and (2) seller did not demonstrate the ability to close on that date. Therefore seller's motion for summary judgment in this specific performance action was properly denied:

In order to make time of the essence, “there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act”… . “What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … . “Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance” … . “The determination of reasonableness must by its very nature be determined on a case-by-case basis” … . “[T]he question of what constitutes a reasonable time is usually a question of fact” … .

Here, the seller failed to establish, prima facie, that the time of the essence letter provided the buyer with a reasonable time within which to close … . Furthermore, the seller's submissions failed to eliminate triable issues of fact as to whether the property was the subject of ongoing administrative proceedings, in violation of the contract of sale, which could be completely resolved at the scheduled closing or within a reasonable time thereafter … . Under these circumstances, the seller failed to sustain its burden of demonstrating that it was ready, willing, and able to convey title in accordance with the contract of sale … . Rodrigues NBA, LLC v Allied XV, LLC, 2018 NY Slip Op 06129, Second Depy 9-19-18

REAL PROPERTY LAW (SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/ CONTRACT LAW (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))PURCHASE AGREEMENT (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/TIME OF THE ESSENCE (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))

INSURER DID NOT DEMONSTRATE THE INSUREDS’ LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff's motion for summary judgment against the defendant insurer should have been granted. Plaintiff was involved in an automobile accident with the insureds [Onwuzurulke and Noel]. The defendant insurer disclaimed coverage on the basis of the insureds' alleged lack of cooperation with the investigation. The Second Department held that insurer did not demonstrate the lack of cooperation on the part of one of the insureds and did not make a timely disclaimer:

“To effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction” … . ” [M]ere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation'” … .

The defendant met these requirements with regard to Onwuzurulke. The defendant hired an investigator to locate Onwuzurulke, the investigator communicated with him, and Onwuzurulke refused to cooperate. However, with regard to Noel, the defendant failed to meet its “heavy” burden of “proving lack of cooperation”… . defendant repeatedly sent letters to an address where Noel did not reside. Further, the defendant's investigator searched for Noel under an incorrect name.

In any event, the defendant's disclaimer of coverage with regard to both Noel and Onwuzurulke was untimely. Insurance Law § 3420(d)(2) provides that, when an insurer disclaims liability or denies coverage for bodily injury arising out of a motor vehicle accident occurring within the state, “it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.” “The timeliness of an insurer's disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . “[T]he issue of whether a disclaimer was unreasonably delayed is generally a question of fact, requiring an assessment of all relevant circumstances”… . However, “an insurer's explanation [for the delay in disclaiming] is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of delay”… . Robinson v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 06128, Second Dept 9-19-18

INSURANCE LAW (INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NONCOOPERATION (INSURANCE LAW, (INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DISCLAIMER (INSURANCE LAW, INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, INSURER DID NOT DEMONSTRATE THE INSUREDS' LACK OF COOPERATION WITH THE INVESTIGATION INTO THE TRAFFIC ACCIDENT AND DID NOT MAKE A TIMELY DISCLAIMER, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT).

The Second Department determined defendant town did not owe a duty to plaintiff who was struck by a car when crossing a county road after attending a town fireworks display:

On the evening of July 17, 2012, the infant plaintiffs attended a concert and fireworks show held by the Town of Oyster Bay in a Town park. The infant plaintiffs allegedly were injured when they were struck by a car while crossing Merrick Road in the Town, at a site where there was neither a crosswalk nor any traffic control devices. The infant plaintiffs and their father commenced this action to recover damages for the personal injuries sustained by the infant plaintiffs and for loss of services on behalf of their father, against, among others, the Town. …

“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . “The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the courts” …  Under the particular circumstances of this case, the Town established, prima facie, that it owed no duty to the infant plaintiffs once they left Town property and decided to cross Merrick Road, which is owned by the County … . Janas v Town of Oyster Bay, 2018 NY Slip Op 06086, Second Dept 9-19-18

NEGLIGENCE (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/MUNICIPAL LAW (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/TRAFFIC ACCIDENTS (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))/PEDESTRIANS  (TOWN DID NOT OWE A DUTY TO PLAINTIFF WHO WAS STRUCK BY A CAR CROSSING A STREET AFTER ATTENDING A TOWN FIREWORKS DISPLAY (SECOND DEPT))

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CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the law-office-failure offered as an excuse for failure to comply with a conditional order in this foreclosure action was not sufficient to justify vacating the dismissal of the action:

To vacate the dismissal, HSBC was required to demonstrate a justifiable excuse for the noncompliance with the conditional order of dismissal and the existence of a potentially meritorious cause of action (see CPLR 3216… ). Here, the proffered excuse of law office failure by prior counsel in failing to timely file a note of issue or move for entry of judgment was conclusory and wholly unsubstantiated (see CPLR 2005…). HSBC did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure. Therefore, the allegation of law office failure did not rise to the level of a reasonable excuse … . Fremont Inv. & Loan v Fausta, 2018 NY Slip Op 06084, Second Dept 9-19-18

CIVIL PROCEDURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 3216 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE  (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))

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DETECTIVE’S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the detective's testimony that the complainant picked the defendant out of a lineup constituted inadmissible bolstering. The issue was reviewed in the interest of justice (error not preserved);

The defendant has not preserved for appellate review his contention that the prosecutor improperly elicited testimony from a detective stating that he arrested the defendant after the defendant was identified in a lineup by the complainant. However, we nevertheless review this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). The detective's testimony implicitly bolstered the complainant's testimony by providing official confirmation of the complainant's identification of the defendant … . A violation of the rule against bolstering may not be overlooked except where the evidence of identity is so strong that there is no serious issue upon that point … . Here, the evidence that the defendant committed the crime was not so overwhelming as to render the error harmless. This error was compounded by improper comments made during the People's summation regarding the complainant's identification of the defendant as the robber. People v Ramirez, 2018 NY Slip Op 06120, Second Dept 9-19-18

CRIMINAL LAW (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/APPEALS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/LINEUPS (CRIMINAL LAW, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/BOLSTERING (CRIMINAL LAW, LINEUPS, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DETECTIVE'S TESTIMONY THAT COMPLAINANT PICKED DEFENDANT OUT OF A LINEUP WAS INADMISSIBLE BOLSTERING, ERROR REVIEWED IN THE INTEREST OF JUSTICE, CONVICTION REVERSED (SECOND DEPT))

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STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment in this defamation and injurious falsehood action should have been granted. The allegedly defamatory statements were made by defendant Dimino who was hired to assess the reasons for gas leaks at a school. The defendant concluded the gas leaks were the result of improper installation of the gas lines by plaintiff. Plaintiff was thereafter prohibited from doing any further school-related work for five years. The statements made about plaintiff's work were deemed protected by qualified common-interest privilege:

… [T]he defendants made a prima facie showing that the challenged statements were protected by the qualified common-interest privilege … . The evidence in the record demonstrated that the letter, which does not reference the plaintiff by name, was written by Dimino at the request of the DOE [Department of Education], and that the defendants did not identify the plumbing company that installed the gas piping at the school. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements were motivated solely by malice … . ” Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege'”… . Although the plaintiff disputes that its workmanship was poor and that it used lamp wick in the gas pipes at the school, the plaintiff failed to submit sufficient evidence to support its claims that the defendants made the statements for the purposes of justifying the cost of their repair work and eliminating the plaintiff as a competitor.

For these same reasons, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging injurious falsehood. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants made false statements, maliciously and with the intent to harm it, or recklessly and without regard to their consequences … . In addition, the defendants established, prima facie, that they did not tortiously interfere with the plaintiff's business relations. In opposition, the plaintiff failed to raise a triable issue of fact as to whether Dimino made the alleged defamatory statements in the letter for the sole purpose of harming the plaintiff or by using unlawful means … . Franco Belli Plumbing & Heating & Sons, Inc. v Dimino, 2018 NY Slip Op 06083, Second Dept  9-19-18

DEFAMATION (STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))

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SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT’S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT).

The Second Department determined defendant juvenile offender could not move to suppress his presentence report in subsequent Department of Homeland Security proceedings:

The defendant, an immigrant from Bangladesh, was adjudicated a youthful offender. After completing his sentence, the defendant was detained by the United States Department of Homeland Security (hereinafter the DHS), which, in reliance on the defendant's presentence report, argued that the defendant should be denied a bond due to his youthful offender adjudication. Thereafter, the defendant moved before the Supreme Court in the subject criminal proceeding pursuant to CPLR 3103 for a protective order “enjoining the [DHS's] use” of his presentence report, arguing that it is a confidential record under CPL 720.35(2), which the DHS had improperly obtained. In an order dated June 6, 2017, the Supreme Court denied the defendant's motion. The defendant appeals.

CPLR 3103 ” confers broad discretion upon a court to fashion appropriate remedies' to prevent the abuse of disclosure devices” … . Pursuant to CPLR 3103(c), “[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed” … . Here, since the DHS did not obtain the presentence report in the course of any disclosure process under CPLR Article 31, there is no basis for the issuance of a protective order pursuant to CPLR 3103(c). Moreover, since “[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere” … , the Supreme Court lacked the power to suppress the presentence report in immigration proceedings. People v Saqline K., 2018 NY Slip Op 06115, Second Dept 9-19-18

CRIMINAL LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/IMMIGRATION LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/EVIDENCE (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))CIVIL PROCEDURE (IMMIGRATION LAW, (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))PRESENTENCE REPORT (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))

DEFAULT NOTICE WAS NOT A CLEAR AND UNEQUIVOCAL ACCELERATION OF THE MORTGAGE, THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION DID NOT START RUNNING FROM THE DATE OF THE NOTICE (SECOND DEPT). ​

The Second Department determined the language in a letter was not sufficient to trigger the acceleration of the debt, which, in turn, would have started the the running of the statute of limitations for a foreclosure action:

In June 2005, nonparty Cecilia Adebola executed a promissory note in the sum of $549,000 in favor of Fremont Investment & Loan [FBP] secured by a mortgage encumbering real property located in Brooklyn. After Adebola defaulted under the terms of the note and mortgage, the loan servicer sent her a notice of default dated July 3, 2006. The notice of default stated, in relevant part, that “[i]f the default is not cured on or before August 7, 2006, the mortgage payments will be accelerated with the full amount . . . becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” * * *

Here, it is clear from the record that FBP cannot establish that the notice of default letter was a clear and unequivocal acceleration of the mortgage … . The notice of default “was nothing more than a letter discussing acceleration as a possible future event, which does not constitute an exercise of the mortgage's optional acceleration clause” … . Fbp 250, LLC v Wells Fargo Bank, N.A., 2018 NY Slip Op 06082, Second Dept 9-19-18

FORECLOSURE (DEFAULT NOTICE WAS NOT A CLEAR AND UNEQUIVOCAL ACCELERATION OF THE MORTGAGE, THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION DID NOT START RUNNING FROM THE DATE OF THE NOTICE (SECOND DEPT))/ACCELERATION OF MORTGAGE  (DEFAULT NOTICE WAS NOT A CLEAR AND UNEQUIVOCAL ACCELERATION OF THE MORTGAGE, THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION DID NOT START RUNNING FROM THE DATE OF THE NOTICE (SECOND DEPT))

PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that plaintiff's motion for summary judgment in the pedestrian-vehicle accident case should have been granted. Plaintiff, a New York City Police Department traffic enforcement agent, was walking in the road when he was struck by defendant's vehicle. Plaintiff's motion for summary judgment should have been granted because plaintiff did not have demonstrate freedom from comparative fault:

On April 3, 2018, the Court of Appeals decided Rodriguez v City of New York (31 NY3d 312, 324-325), and held that “[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault” … . Reviewing the record in the context of this recent decision, we conclude that the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by the submission of deposition testimony which demonstrated that as the defendant driver was operating the vehicle, he took his eyes off the road and struck the plaintiff and a parked vehicle. The testimony further demonstrated that the defendant driver did not see the plaintiff prior to impact. Outar v Sumner, 2018 NY Slip Op 06103, Second Dept 9-19-18

NEGLIGENCE (PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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