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PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE NOTE WAS NOT PROPERLY ENDORSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not establish standing to foreclose. Although the plaintiff proved it had possession of the note at the time the proceeding was brought, it did not demonstrate the note was properly endorsed:

Although the plaintiff established, prima facie, that it had possession of the original “wet ink” note prior to commencing the instant action …, the plaintiff failed to demonstrate that the note was properly endorsed. “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a[n] . . . action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … . Here, the instant note bore no endorsements and had no allonges attached. Deutsche Bank Natl. Trust Co. v PJK Holdings, LLC, 2024 NY Slip Op 05787, Second Dept 11-20-24

Practice Point: If standing to foreclose is contested, a plaintiff must show (1) it was in possession of the note at the time the proceeding was brought and (2) the note was properly endorsed in blank or specifically to the plaintiff.

 

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DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not make out a prima facie case that the sidewalk defect was trivial as a matter of law. Therefore defendants’ summary judgment motion should not have been granted:

… [T]he evidence submitted by the defendants, including, inter alia, a transcript of the plaintiff’s deposition testimony, as well as photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically the height of the allegedly misleveled sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or to reasonably infer the extent of the defect from the photographs submitted … .

Therefore, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint on the ground that the defect was trivial and not actionable. Abreu v Pursuit Realty Group, LLC, 2024 NY Slip Op 05781, Second Dept 11-20-24

Practice Point: Here the photos of the sidewalk defect were not supplemented with objective measurements. The proof did not establish the defect was trivial as a matter of law.

 

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DEFENDANT SCHOOL DISTRICT DID NOT MAKE OUT A PRIMA FACIE CASE DEMONSTRATING IT LACKED CONSTRUCTIVE NOTICE OF THE TEACHER’S ALLEGED PROPENSITY TO SEXUALLY ABUSE CHILDREN; THEREFORE ITS MOTION FOR SUMMARY JUDGMENT IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district was not entitled to summary judgment in this case alleging sexual abuse by a teacher in 2013 – 2014. A question of fact had been raised about whether the school district knew or should have known of the teacher’s alleged propensity to abuse children:

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee” … . “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

“A school ‘has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision'” … . “‘The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information'” … . “‘The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury'” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “‘Actual or constructive notice to the school of prior similar conduct generally is required'” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, the defendants submitted a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that the principal and other teachers were aware of the teacher’s inappropriate behavior, which occurred multiple times throughout the school year in a classroom on the defendants’ premises during school hours … . J.J. v Mineola Sch. Dist., 2024 NY Slip Op 05580, Second Dept 11-13-24

Practice Point: Here the plaintiff’s testimony that the principal and other teachers were aware of the teacher’s inappropriate behavior which occurred multiple times in a classroom was enough to prevent the school from making out a prima facie case that it did not have constructive notice of the teacher’s alleged propensity.

 

THE COMPLAINT STATED CAUSES OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALINGS, AS WELL AS PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of contract based on the implied covenant of good faith and fair dealing. In addition, the Second Department held that the promissory estoppel and unjust enrichment causes of action did not duplicate the breach of contract causes of action:

Even if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain … . “While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included” … . “Technically complying with the terms of a contract while depriving the plaintiff of the benefit of the bargain may constitute a breach of the covenant of good faith and fair dealing” … .

* * *  “‘[E]ven an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party’s right to the benefit under the agreement'” … . The defendant failed to utterly refute the allegations in the complaint that the defendant terminated the consulting agreement without justification or good cause at a time when the completion of the subdivision of the property was only weeks away, despite the plaintiff’s alleged expenditure of hundreds of hours managing the process over the course of two years, and that the defendant acted in derogation of the consulting agreement, including by selling the property for less than its fair market value.

… Where “there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quantum meruit as well as contract, and will not be required to elect his or her remedies” … . JLO Dev. Corp. v Amalgamated Bank, 2024 NY Slip Op 05577, Second Dept 11-13-24

Practice Point: A complaint alleging breach of contract based on a violation of an implied covenant of good faith and fair dealing will survive a motion to dismiss, despite there being no specific provision of the contract which was alleged to have been breached.

Practice Point: Where there is an issue as to the existence of a contract or where the contract does not cover the issue in dispute, the plaintiff may plead promissory estoppel and unjust enrichment, in addition to breach of contract.

 

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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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FAILURE TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE PROVISIONS OF RPAPL 1304 REQUIRED REVERSAL OF SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to prove compliance with the notice requirements in RPAPL 1304 required reversal in this foreclosure action:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304. To that end, the plaintiff submitted an affidavit of Sarah L. Stonehocker, a vice president of loan documentation employed by the plaintiff’s loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), with attachments, which were insufficient to establish compliance with RPAPL 1304. While Stonehocker averred that she had personal knowledge of Wells Fargo’s business records and that, according to the business records she reviewed, 90-day notices were served via certified and first-class mail at the subject property, Stonehocker did not attest that she was familiar with the standard office mailing procedures of LenderLive, LLC (hereinafter LenderLive), the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of the plaintiff. Thus, Stonehocker’s “affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, Stonehocker’s affidavit failed to address the nature of Wells Fargo’s relationship with LenderLive and whether LenderLive’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business… . Thus, Stonerhocker’s affidavit failed to lay a foundation for the admission of a transaction report generated by LenderLive (see CPLR 4518[a] …). “Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . U.S. Bank N.A. v Nahum, 2024 NY Slip Op 05581, Second Dept 11-13-24

Practice Point: Reversal of summary judgment because the bank failed to prove the RPAPL 1304 notice of foreclosure was properly mailed to defendant(s) is becoming less frequent, but there have been hundreds of reversals on this same ground over at least the last ten years.

 

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FATHER’S ABUSE AND NEGLECT OF ONE CHILD, HANNAH D, SUPPORTED THE FINDING FATHER DERIVATIVELY ABUSED TWO OTHER CHILDREN, EVEN THOUGH ONE WAS AN INFANT AND THE OTHER HAD NOT BEEN BORN AT THE TIME OF THE ABUSE OF HANNAH D (SECOND DEPT).

The Second Department, reversing Family Court, determined the abuse of one daughter, Hannah D, supported a finding father derivatively abused two other children, even though one was an infant and the other had not been born at the time of the abuse of Hannah D:

… [A] preponderance of the evidence supported a finding of derivative abuse and neglect. The nature of the father’s direct abuse of Hannah D., the frequency of the father’s acts, and the circumstances of the father’s commission of the acts evidence fundamental flaws in the father’s understanding of the duties of parenthood. In addition, the father’s actions affirmatively created a substantial risk of physical injury which would likely cause impairment of the subject children’s health within the meaning of Family Court Act § 1012 (e)(ii), thus requiring a finding that the subject children have been derivatively abused and neglected … . The finding of derivative abuse and neglect is not undermined by the fact that at the time of the father’s abuse of Hannah D., one of the subject children was an infant and the other had not yet been born … . The evidence demonstrates that the father’s parental judgment and impulse control are so defective as to create a substantial risk to any child in his care … . Moreover, the father failed to establish by a preponderance of the evidence that the condition cannot reasonably be expected to exist currently or in the foreseeable future … . Matter of Davena A. (Christopher A.), 2024 NY Slip Op 05439, Second Dept 11-6-24

Practice Point: The abuse of one child can support a finding other children were derivatively abused, even if the other children were infants or had not been born at the time of the abuse of the eldest child.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke:

Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury … . The plaintiff submitted an affirmation of an emergency medicine physician who opined, inter alia, that the hospital’s staff failed to take a thorough history of the decedent’s symptoms and failed to provide an interpreter for that purpose in contravention of the applicable standard of care. The plaintiff also submitted an affirmation of a radiologist, who opined that a CT scan of the decedent’s brain performed on the day that the decedent presented to the hospital showed an infarct and that the hospital’s radiologist had failed to recognize this evidence of a stroke. The plaintiff’s emergency medicine expert opined that had the decedent been properly and timely diagnosed, treatment options were available, including the possible administration of tPA or the use of certain other medications.

Under these circumstances, the plaintiff raised triable issues of fact as to whether there was a departure from the standard of care and whether such departure decreased the chances of a better outcome or increased the decedent’s injuries … . Hanna v Staten Is. Univ. Hosp., 2024 NY Slip Op 05435, Second Dept 11-6-24

Practice Point: Here plaintiff’s expert raised a question of fact about whether the stroke diagnosis was timely and whether the delay decreased the chances of a better outcome.

 

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special duty to the child. In this Child Victims Act case, plaintiff alleged sexual abuse during the 1970’s by her foster father and, during a different foster placement, by her adult neighbor:

The Court of Appeals has long held that “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . In this case, we consider how this rule applies in the context of claims against municipalities for the negligent placement and supervision of children in foster care. In contrast to the recent holdings of the Appellate Division, First and Fourth Departments, we conclude that a municipal agency owes a special duty to a foster child upon assuming legal custody of that child. An agency that assumes custody of a foster child, and which selects and supervises that child’s foster parents, necessarily owes a duty to the child “more than that owed the public generally” … . Thus, where, as here, a plaintiff asserts causes of action to recover damages for harm suffered by a foster child due to the negligent performance of a governmental function and alleges facts sufficient to show that the defendant municipal agency assumed legal custody over that child, that plaintiff need not prove any additional facts in order to satisfy the special duty rule. Adams v Suffolk County, 2024 NY Slip Op 05428, Second Dept 11-6-24

Practice Point: A municipality’s liability for negligence in performing a governmental function is predicated upon owing the injured party a special duty, over and above that owed to the general public. Here, disagreeing with contrary holdings in the First and Fourth Departments, the Second Department held a county which assumes custody of a child for placement in foster care owes a special duty to that child.

 

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THE ATTORNEY’S “CERTIFICATE OF TRANSLATION” DID NOT INCLUDE SUFFICIENT DETAIL ABOUT THE ATTORNEY’S KNOWLEDGE OF THE SPANISH LANGUAGE; THEREFORE THE TRANSLATION OF PLAINTIFF’S AFFIDAVIT WAS NOT ADMISSIBLE AND SUMMARY JUDGMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing summary judgment in favor of plaintiff in this traffic accident case, determined the attorney’s “certificate of translation” was not sufficient to render plaintiff’s affidavit, written in Spanish, admissible:

… [P]laintiff submitted an affidavit in which he averred, among other things, that the “affidavit was translated to me from English to Spanish prior to my signing by a person who speaks Spanish as it is my native language and the language I understand best.” The plaintiff also submitted a certificate of translation by an associate attorney at his counsel’s law office in which the associate attorney affirmed, without elaboration, that she is fluent in English and Spanish and competent to translate documents from one language to the other. Under these circumstances, the conclusory certificate of translation does not contain sufficient detail concerning the extent of the associate attorney’s knowledge of the Spanish language. As such, the associate attorney’s certificate of translation was insufficient to state the associate attorney’s qualifications, rendering the plaintiff’s affidavit inadmissible (see CPLR 2101[b] …). Reyes v Underwood, 2024 NY Slip Op 05466, Second Dept 11-6-24

Practice Point: Here plaintiff’s affidavit in support of summary judgment was in Spanish. An attorney provided a “certificate of translation” which did not include sufficient detail about the attorney’s knowledge of the Spanish language. Therefore the affidavit was inadmissible.​

 

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