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A CONTRACT BETWEEN A LANDOWNER AND A TOWN THAT PURPORTS TO BIND TOWN BOARDS ELECTED IN THE FUTURE WITH RESPECT TO A PETITION FOR REZONING VIOLATES THE TERM LIMITS RULE; A CONTRACT WHICH PURPORTS TO LIMIT A TOWN’S REZONING REVIEW PROCESS VIOLATES THE PROHIBITION AGAINST CONTRACT ZONING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the contract entered into between plaintiff property owner and the town board and town planning board violated the term limits rule and the prohibition against contract zoning. The contract purported to prohibit the town from terminating its review of the petition to rezone the land (to allow construction of multi-family residences) until the final determination on the merits. The contract purported to bind town boards elected in the future, which violates the term limits rule. And the contract purported to commit the town board to a specific course of action for review of the zoning petition, which violates the prohibition of contract zoning:

The provision of the [contract] states in relevant part that the Town Board “shall not terminate its review of the [plaintiff’s] Zoning Petition, and the Project in general, until it reaches a final determination on the merits in its legislative judgment regarding the best interests of the Town based upon empirical data and other objective factual bases.” This provision, which attempts to constrain the Town Board’s decision-making process regarding its zoning responsibilities, implicates the Town Board’s governmental and legislative powers, as enacting zoning ordinances is a significant function of local government … . * * *

The plaintiff fails to acknowledge that while [the contract] may indicate that nothing … limits the Town Board in the exercise of its legislative power, that statement is qualified by the language that states “except as otherwise provided herein,” thus eviscerating the import of the preceding language. The fact that the [contract] may not mandate a particular outcome does not mean … that it fails to violate the term limits rule. * * *

… [T]he plain language of the [contract] commits the Town Board to a review of the plaintiff’s zoning petition, and purports to forbid termination of the review process until the Town Board reaches a final determination on the merits. Such determination must be based upon “empirical data and other objective factual bases.” Such language evidences that the [contract] was clearly meant to commit the Town Board to a specific course of action with respect to the review process of the zoning petition. Hudson View Park Co. v Town of Fishkill, 2024 NY Slip Op 05332, Second Dept 10-30-24

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY TO THE 2005 DISONTINUANCE OF THE FORECLOSURE ACTION RENDERING THE ACTION COMMENCED IN 2015 TIME-BARRED (SECOND DEPT).

The Second Department, in a complex decision addressing issues not summarized here, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 3217) applied retroactively to the 2005 voluntary discontinuance. Therefore the instant action, which was commenced in 2015, was time-barred:

The Foreclosure Abuse Prevention Act … ; hereinafter FAPA) amended CPLR 3217, which governs the voluntary discontinuance of an action, to provide that “[i]n any action on an instrument described under [CPLR 213(4)], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” … . Thus, applying FAPA, the voluntary discontinuance of the 2005 action did not serve to reset the statute of limitations … .

Wells Fargo’s contention that CPLR 3217(e), added under FAPA, was not intended to have retroactive effect is without merit. FAPA took effect “immediately,” applying “to all actions commenced on an instrument described under [CPLR 213(4)] in which a final judgment of foreclosure and sale has not been enforced” … . Thus, “[a]lthough the Legislature did not explicitly state that FAPA should apply retroactively, it clearly indicated that it should” … . Wells Fargo Bank, N.A. v Edwards, 2024 NY Slip Op 05368, Second Dept 10-30-24

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) was applied retroactively here to a 2005 voluntary discontinuance of the foreclosure action, rendering the action started in 2015 time-barred.​

 

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PLAINTIFF DID NOT DEMONSTRATE SANCTIONS FOR SPOLIATION OF EVIDENCE WERE WARRANTED; THE VIDEO FOOTAGE FOR THE DAY OF THE FALL HAD BEEN AUTOMATICALLY DELETED BEFORE THE PRESERVATION LETTER WAS RECEIVED; HOWEVER DEFENDANTS HAD PRESERVED 52 SECONDS OF VIDEO SHOWING JUST BEFORE THE FALL, THE FALL AND PLAINTIFF WALKING AWAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the restrictions placed on defendants’ presentation of evidence of liability relevant to plaintiff’s slip and fall constituted an abuse of discretion. Plaintiff fell on March 24, 2018, and defendants received a letter requesting that 12 hours of video footage be preserved on April 9, 2018. By April 9 the video had been automatically deleted. Defendants had preserved 52 seconds of the video which included just before the fall, the fall, and plaintiff walking away:

The plaintiff did not establish that the defendants were placed on notice that the video evidence might be needed for future litigation before the surveillance footage was automatically deleted … . Further, the defendants’ preservation of only a portion of the surveillance footage did not indicate a culpable state of mind, as the defendants’ representative averred in an affidavit that, on the date of the accident, she saved a 52-second clip of the incident. The representative testified at her deposition that to locate this clip, she had entered the date and time that the alleged accident occurred, and she averred that, by the time she received the preservation letter, the surveillance footage had been automatically deleted … . In addition, the plaintiff did not establish that the absence of the additional surveillance footage deprived her of the ability to prove her case … . De Abreu v Syed Rests. Enters., Inc., 2024 NY Slip Op 05326, Second Dept 10-30-24

Practice Point: The criteria for spoliation of evidence were not met by the facts here. The video footage for the day of the fall was automatically deleted before the preservation letter was received. Defendants preserved video footage of just before the fall, the fall and plaintiff walking away.​

 

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FATHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the denial of father’s petition for permission to relocate with the children was not supported by the evidence:

The father’s testimony demonstrated that he was unable to continue renting his grandmother’s house in New York, where he and the children had been residing, and that the mother provided only $25 per month in child support for both children … . The father’s testimony also demonstrated that, if permitted to relocate, he would be able to obtain employment in his field of experience with at least the same salary as he earned in New York and that his living expenses would be lower in South Carolina than they were in New York … . Additionally, the father would have support from extended family in South Carolina, including the paternal grandmother, a certified behavioral analyst and special education administrator who has assisted the father in addressing one of the children’s special needs … .

With respect to the mother’s relationship with the children, the hearing testimony demonstrated that the father has been the children’s primary caregiver since 2017 and that the mother was not involved in the children’s day-to-day lives, education, or healthcare … . Although the father’s relocation will have an impact upon the mother’s ability to spend time with the children, the Family Court can fashion an appropriate parental access schedule that will allow the mother to foster a relationship with the children … . Matter of Scotto v Alexander, 2024 NY Slip Op 05348, Second Dept 10-30-24

Practice Point: Consult this decision for insight into when a petition to relocate to another state with the children should be granted.

 

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THE FACT THAT DEFENDANT HAD BEEN AT LIBERTY FOR 11 YEARS WITHOUT COMMITTING A SEX OFFENSE AND THE FOUR-YEAR DIFFERENCE IN AGE BETWEEN DEFENDANT AND THE VICTIM WARRANTED A DOWNWARD DEPARTURE TO LEVEL ONE (SECOND DEPT). ​

The Second Department, granting defendant a downward departure to level one in this SORA risk-assessment proceeding, determined the fact that during 11 years of liberty defendant has not committed a sex offense, and the four-year age-difference between defendant and the victim, should have been considered by the SORA court:

… [T]he defendant has been at liberty for more than 11 years without committing an additional sex offense or violent felony. Additionally, although the Supreme Court properly assessed the defendant points on the risk assessment instrument based on both the victim’s age (risk factor 5) and the defendant’s age at the time of his first offense (risk factor 8), the court did not adequately account for the age difference between the victim and the defendant, which was approximately four years and two months, as an appropriate mitigating factor … .

Under the totality of the circumstances, including that the defendant was already on the cusp of the range applicable to a presumptive risk level two designation … , we designate the defendant a level one sex offender … . People v Wildman, 2024 NY Slip Op 05229, Second Dept 10-23-24

Practice Point: 11 years of liberty without committing a sex offense and the four-year age gap between defendant and the victim warranted a downward departure to level one in this SORA risk-level proceeding.​

 

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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father was not provided with effective assistance of counsel in this child support proceeding. The standard for effective assistance is “meaningful representation” because the punishment can (and did) include incarceration:

As the father contends, he was deprived of the effective assistance of counsel at the hearing on the mother’s petition alleging willful violation of the child support order. “[I]n support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, . . . the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” … . Here, the father’s position at the hearing was that, due to his neuropathy, he was unable to work and had to rely on public assistance for income. Notably, despite having been advised that the father was required to provide a financial disclosure affidavit, tax forms, and certified medical and income records, the father’s counsel failed to procure certified copies of the father’s medical records or records establishing his entitlement to and receipt of public assistance. Moreover, the father’s counsel failed to call any witnesses to testify regarding the father’s neuropathy, to subpoena the father’s treating physician, or to obtain a medical affidavit from the father’s physician. The Support Magistrate made specific reference to the lack of any credible medical testimony, an incomplete financial disclosure affidavit, and the lack of tax returns in finding that the father failed to refute the mother’s prima facie showing of a willful violation of the child support order. The failure of the father’s counsel to obtain relevant medical and financial information constituted a failure to meaningfully represent the father, and thus, the father is entitled to a new hearing on the mother’s petition … . Matter of McCloskey v Unger, 2024 NY Slip Op 05210, Second Dept 10-23-24

Practice Point: Where a party in a child support proceeding faces possible incarceration, the party is entitled to “meaningful representation” by counsel, which was absent here.

 

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THE PROCESS SERVER’S AFFIDAVIT DID NOT DEMONSTRATE THE PERSON SERVED WAS AN AGENT OF DEFENDANT CORPORATION; CLERK’S JUDGMENT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating the clerk’s (default) judgment for over $420,000, determined the process server’s affidavit did not demonstrate the person served with the summons and complaint was an agent of defendant corporation:

The plaintiff failed to establish that personal jurisdiction had been acquired over the defendant through proper service of process. Although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service … , here, the affidavit of service contained no indication that Lewis was an agent of the defendant authorized to accept service on the defendant’s behalf (see CPLR 311[1][a] …). Accordingly, the Supreme Court should have granted, pursuant to CPLR 5015(a)(4), that branch of the defendant’s motion which was to vacate the clerk’s judgment. Bold Broadcasting, LLC v Wawaloam Reservation, Inc., 2024 NY Slip Op 05196, Second Dept 10-23-24

Practice Point: Here the process server’s affidavit did not demonstrate the person served with the summons and complaint had the authority to accept service for defendant corporation. The default judgment was vacated.​

 

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THE ACTIONS TAKEN BY THE 911 DISPATCHER AND THE EMERGENCY MEDICAL TECHNICIANS CONSTITUTED THE EXERCISE OF DISCRETION IN THE PERFORMANCE A GOVERNMENT FUNCTION; THE GOVERNMENT FUNCTION IMMUNITY DEFENSE INSULATED THE MUNICIPAL DEFENDANTS FROM LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants were entitled to summary judgment dismissing the negligence action stemming from decisions made by emergency personnel in response to a 911 call. The emergency services, including the dispatch of a “Basic Life Support” (BLS), as opposed to an “Advanced Life Support” (ALS) ambulance, and the attempts to intubate the unresponsive plaintiff rather than to immediately transport her to the hospital, were deemed the exercise of discretion while performing a government function. Discretionary actions taken in performance of a government function are insulated from liability by the government-function-immunity defense:

“[W]hen both the special duty requirement and the governmental function immunity defense are asserted in a negligence case, the rule that emerges is that government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . In other words, in a negligence action where the municipality has raised the governmental function immunity defense, a plaintiff may only hold the municipality liable for actions taken in its governmental capacity where (1) a special duty exists and (2) the municipality’s actions were ministerial in nature and not the result of discretionary decision-making … . * * *

The defendants demonstrated that the 911 dispatcher’s decision, among other things, to send a BLS ambulance rather than an ALS ambulance “was discretionary and, therefore, protected by the doctrine of governmental immunity” … . Under the circumstances presented, the defendants also established that the EMTs exercised their discretion in declining to immediately transport [plaintiff] to the nearby hospital and to instead wait for the paramedics in the ALS ambulance to arrive. Similarly, the defendants demonstrated that the actions of the paramedics resulted from discretionary decision-making, including with regard to the type of treatment to render … . Walker-Rodriguez v City of New York, 2024 NY Slip Op 05237, Second Dept 10-23-24

Practice Point: Consult this decision for a concise but complete one-paragraph compilation of all the issues associated with municipal liability for negligence–proprietary versus government function, special duty, discretionary versus ministerial acts, etc.

 

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THE BANK SUFFICIENTLY PROVED COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING; STRONG DISSENT (SECOND DEPT).

The Second Department, affirming summary judgment in favor of plaintiff in this foreclosure action, over a detailed dissent, determined plaintiff had demonstrated compliance with the RPAPL 1304 mailing requirements for the notice of foreclosure. The dissent argued the notice requirements were not strictly complied with. The decision is too detailed to fairly summarize here, but it should be consulted for its discussion of the proof a bank must present on the “RPAPL 1304” notice requirements to warrant summary judgment. U.S. Bank N.A. v Romano, 2024 NY Slip Op 05235, Second Dept 10-23-24

Practice Point: For at least a decade, the appellate courts have reversed summary judgment in foreclosure cases because proof of the bank’s compliance with the notice requirements of RPAPL 1304 was found deficient. Here, over a strong dissent, the proof was deemed adequate. The detailed discussion of the proof requirements, in the majority decision and in the dissent, is instructive on the issue.

 

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THE BANK FAILED TO PROVE STANDING TO FORECLOSE BECAUSE THE NECESSARY BUSINESS RECORDS WERE NOT ATTACHED TO THE FOUNDATIONAL AFFIDAVITS; HOWEVER, THE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THEY FAILED TO AFFIRMATIVELY PROVE THE BANK DID NOT HAVE STANDING (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action failed to prove it had standing to foreclose because the necessary business records were not attached to the foundational affidavits. The court noted that Supreme Court properly denied defendants’ motion for summary judgment because the defendants did not prove the bank did not have standing:

“Although [t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Without the introduction of the records themselves, “a witness’s testimony as to the contents of the records is inadmissible hearsay” … .

Here, the plaintiff relied on the affidavits from Jackson and Smith to demonstrate that it had possession of the note prior to commencing this action. The defendants correctly contend that neither Jackson nor Smith attached any business records to their affidavits. Thus, the assertions of Jackson and Smith that the plaintiff had possession of the note prior to commencing this action were inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Bank of N.Y. v Levy, 2024 NY Slip Op 05085, Second Dept 10-16-24

Similar failure of proof in the context of the confirmation of the referee’s report in a foreclosure proceeding, i.e., the failure to produce the business records relied upon by the affiant. Deutsche Bank Natl. Trust Co. v Quaranta, 2024 NY Slip Op 05090, Second Dept 10-16-24

​Practice Point: In a foreclosure proceeding, the failure to attach or produce the business records relied upon by an affiant renders the affidavit inadmissible hearsay.

Practice Point: The bank’s failure to prove it has standing to foreclose (due to the failure to attach the relevant business records to a foundational affidavit) does not entitle defendants to summary judgment on the standing issue. Defendants must affirmatively prove the bank does not have standing to warrant summary judgment in their favor.

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