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ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT).

The Second Department determined Family Court properly refused father’s untimely request  to proceed pro se in this termination of parental rights proceeding:

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A parent in a proceeding pursuant to Social Services Law § 384-b to terminate parental rights has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]). A parent, however, may waive the right to counsel and opt for self-representation … . However, the right to self-representation is “not . . . unfettered” … . In order to invoke the right to defend pro se, “(1) the request [must be] unequivocal and timely asserted, (2) there [must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must not have] engaged in conduct which would prevent the fair and orderly exposition of the issues”… . “An application is timely interposed when it is asserted before the trial commences'”… . “If the request is made thereafter, the right is severely constricted’ and the trial court must exercise its sound discretion and grant the request only under compelling circumstances”… .

Here, the Family Court providently exercised its discretion in denying the father’s request to represent himself since it was untimely, and the father proferred no compelling circumstances to justify the need to grant the application … . Matter of Sarah J. A. (Ramadan G. O.-A.), 2017 NY Slip Op 08661, Second Dept 12-13-17

 

FAMILY LAW (ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/ATTORNEYS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PRO SE (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))

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NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the Department of Education’s (DOE’s) motion for summary judgment in this negligent hiring and retention action was properly denied. The complaint alleged that a school janitor called plaintiff’s daughter “retarded” and “bitch” in front of other students. The DOE argued the janitor was an independent contractor, not an employee, and therefore the DOE could not be liable under the doctrine of respondeat superior. However, the proof of the janitor’s independent contractor status was deemed insufficient to support summary judgment. The Second Department went on to find that the intentional infliction of emotional distress, prima facie tort, and slander causes of action against the DOE should have been dismissed:

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As to the cause of action to recover damages for intentional infliction of emotional distress, the defendants established, prima facie, as a matter of law, that the isolated incident of name calling by the janitor, while unquestionably objectionable, did not rise to the level of extreme and outrageous conduct required to sustain such a cause of action … . As to the cause of action to recover damages for slander, the defendants established, prima facie, as a matter of law, that the janitor’s statements were nonactionable expressions of opinion, and not facts, about the plaintiff’s daughter… . Finally, as to the cause of action to recover damages for prima facie tort, the defendants established, prima facie, that the plaintiff did not incur special damages, a necessary element of the prima facie tort cause of action … . Gadson v City of New York, 2017 NY Slip Op 08657, Second Dept 12-13-17

 

EDUCATION-SCHOOL LAW (NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT HIRING AND RETENTION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT).

The Second Department vacated defendant’s guilty plea because the record did not include a signed written waiver of indictment, as required by the NYS Constitution:

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… [T]he record on appeal does not contain a signed waiver of the defendant’s right to be prosecuted by an indictment. Although a written waiver of indictment appears in the record, it was not signed by the defendant. Furthermore, contrary to the People’s contention, although the transcript of the plea proceedings indicates that the defendant signed a document denominated as a written indictment waiver, that reference in the transcript alone is insufficient to satisfy the constitutional requirement that a waiver of indictment “be evidenced by written instrument signed by the defendant” … . Since the failure to comply with this constitutional requirement amounts to a jurisdictional defect in the plea proceedings … . People v Eulo, 2017 NY Slip Op 08684, Second Dept 12-13-17

 

CRIMINAL LAW (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/CONSTITUTIONAL LAW  (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/INDICTMENT, WAIVER OF (ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT)

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APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT).

The Second Department determined the appeal in this real property dispute warranted sanctions against one appellant and his attorney ($500 each). It appears that the appellants entered a stipulation of settlement in which they stated they owned real property, knowing they did not own the property. The appeal was brought after Supreme Court enforced the stipulated settlement (requiring appellants to pay $1.8 million plus costs):

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We reject the appellants’ argument that they were unaware, at the time of the stipulation of settlement, that the City of Peekskill owned the subject property. Nearly two years prior to the stipulation of settlement, in a proceeding to foreclose a tax lien, in an order and judgment of the Supreme Court, Westchester County (Walker, J.), dated October 1, 2012, the City of Peekskill was granted permission to file a deed conveying the subject property to the City of Peekskill as owner in fee simple absolute. Dashley Realty appealed, and this Court affirmed the judgment … . The appellants failed to demonstrate sufficient cause to vacate the stipulation of settlement, as their purported mistake in not knowing about the City’s ownership when they entered into the stipulation of settlement on August 11, 2014, is belied by the order and judgment dated October 1, 2012, Dashley Realty’s appeal from that judgment, and attorney George W. Echevarria’s representation of Dashley Realty on that appeal.

Under the circumstances of this case, including, but not limited to, the appellants’ attempt to vacate the stipulation of settlement based upon their purported mistake, we find that much of the conduct of the appellant Cirilo Rodriguez and attorney George W. Echevarria, including their prosecution of this appeal, which is based upon the same meritless arguments advanced on the cross motion to vacate the stipulation of settlement, has been “undertaken primarily to delay or prolong the resolution of the litigation” (22 NYCRR § 130—1.1[c][2]). We find that this conduct warrants sanctions in the amount of $500 each on the appellant Cirilo Rodriguez and attorney George W. Echevarria … . ATS-1 Corp. v Rodriguez, 2017 NY Slip Op 08651, Second Dept 12-13-17

 

ATTORNEYS (APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))/APPEALS (SANCTIONS, APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))/SANCTIONS (ATTORNEYS, APPEALS, APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT))

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SECOND DEPT ASKED FOR FURTHER SUBMISSIONS TO DETERMINE WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT).

The Second Department asked for further submissions to determine whether sanctions should be imposed for a frivolous appeal. After a judgment of foreclosure against the mortgagor, the mortgagor deeded the property to plaintiff. Plaintiff then brought a motion to quiet title which was dismissed based upon the foreclosure documents. The plaintiff then appealed, despite having brought identical proceedings in another matter which also had gone up on appeal:

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Here, as in Carbone v Deutsche Bank Natl. Trust Co., a case involving the same plaintiff and almost identical facts, by submitting the judgment of foreclosure and sale and other documents from the prior foreclosure action, the Bank established that it had a defense founded upon documentary evidence; namely, that Carbone took the property subject to a valid judgment of foreclosure and sale, and that the instant action is an improper collateral attack upon the judgment … . Thus, since the Bank established that it had a defense founded upon documentary evidence which conclusively disposed of the plaintiff’s causes of action as a matter of law… , the Supreme Court properly granted the Bank’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint, and properly denied Carbone’s cross motion for summary judgment on the complaint.

In addition, since the plaintiff has raised arguments on this appeal that appear to be “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law” (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous… . Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the plaintiff. Carbone v US Bank N.A., 2017 NY Slip Op 08653, Second Dept 12-13-17

 

APPEALS (SECOND DEPARTMENT ASKED FOR FURTHER SUBMISSIONS TO DETERMINED WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT))/FRIVOLOUS APPEAL  (SECOND DEPARTMENT ASKED FOR FURTHER SUBMISSIONS TO DETERMINED WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT))

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PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s (Department of Education’s, DOE’s) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE’s proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

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Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred… .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities … . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries… . In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” … , “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident… .. According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell … . “Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” … . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should have been to the driver of the middle car in this three-car rear-end collision case. The middle driver demonstrated the driver of the last car struck the middle car and propelled the middle car into the first car, driven by plaintiff:

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“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (Vehicle and Traffic Law § 1129[a]…). Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” … .

Here, [the driver of the middle car] established his entitlement to judgment as a matter of law by demonstrating, prima facie, that his vehicle was slowing down in response to a traffic condition ahead, and that his vehicle was then propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by [the car behind]. Pomerantsev v Vladimir Kodinsky, 2017 NY Slip Op 08545, Second Dept 12-6-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAR-END COLLISIONS (NEGLIGENCE, MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).

The Second Department determined the complaint against the village was properly dismissed because the village did not have written notice of the defect which caused injury. Apparently the village had abandoned a manhole in the street and the state had paved over it. An explosion beneath the manhole lifted up plaintiff’s car which came down on the opposite side of the street:

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Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it”… .

Here, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence, including an affidavit from the Village Clerk, demonstrating that it did not receive prior written notice of the condition alleged. The Village further established, prima facie, that it did not create the alleged condition through an affirmative act of negligence, which was the only exception alleged in the plaintiff’s pleadings …  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village had prior written notice or whether an exception to that requirement applied … . Dibble v Village of Sleepy Hollow, 2017 NY Slip Op 08503, Second Dept 12-6-17

 

MUNICIPAL LAW (NEGLIGENCE, WRITTEN NOTICE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE,  EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))/WRITTEN NOTICE (MUNICIPAL LAW, NEGLIGENCE, EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT))

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BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure proceeding and therefore the bank’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to meet its prima facie burden of establishing its standing … . In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC … , the loan servicer. Foye averred, based on her review of Bayview’s business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff “maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS [Mortgage Electronic Registration Systems, Inc.], as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff … . Bank of N.Y. Mellon v Alli, 2017 NY Slip Op 08501, Second Dept 12-6-17

 

FORECLOSURE (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, (BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, EVIDENCE, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4518 [a] (FORECLOSURE, EVIDENCE, BUSINESS RECORDS, BANK DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT).

The Second Department determined the board of commissioners of a fire district (a municipal corporation) did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) made by the town planning board regarding a residential development. Among other things, the fire district argued that the increased number of residents would burden the fire district with increased service calls. The Second Department noted that the increase burden was an economic concern, not an environmental concern:

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“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature Although raising economic concerns does not foreclose standing to also raise environmental injury … , economic injury is not by itself within the zone of interests which SEQRA seeks to protect … . Here, the petitioner’s concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature … . Matter of Board of Fire Commr. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 2017 NY Slip Op 08514, Second Dept 12-6-17

 

ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STANDING (ENVIRONMENTAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}

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