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THE REFEREE’S REPORT WAS BASED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED RENDERING THE AFFIDAVIT HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the relevant business records were produced to support the affidavit:

Here, the referee based her findings upon her review of the note and mortgage, the summons and complaint, and an affidavit of merit and amount due of the plaintiff’s employee, which listed the amounts due by month and the interest rate, as well as the taxes and insurance paid on the defendant’s account. However, as the defendant correctly contends, the affidavit “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [s]he purportedly relied upon in making [her] calculations” … . Moreover, while the referee’s report found that the mortgaged premises should be sold in one parcel, the referee failed to identify the documents or other sources upon which she based that finding … . Under the circumstances, the referee’s findings with respect to the total amount due and whether the subject property could be sold in one parcel were not substantially supported by the record … . Wells Fargo Bank, N.A. v Laronga, 2023 NY Slip Op 04793, Second Dept 9-27-23

Practice Point: If the referee’s report in a foreclosure action is based on business records, those records must be produced.

 

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ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not eliminate questions of fact about whether the homeowner’s exemption applied to the Labor Law 241(6) cause of action and whether he was liable under the Labor Law 200 and common law negligence causes of action. Although the plaintiff was working on defendant’s private residence, plaintiff was employed as a carpenter by defendant:

Although the defendant demonstrated that the work being performed at his single-family home was directly related to its residential use … , the defendant failed to establish, prima facie, that he did not direct or control the plaintiff’s work. In support of his motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that, at the time of the accident, the defendant owned a business that employed the plaintiff to perform carpentry work on decks and that the defendant instructed the plaintiff on which boards to remove and replace at the defendant’s home. The plaintiff also testified that the defendant provided all of the materials and tools that the plaintiff used for the work at the defendant’s home. Thus, the defendant’s submissions failed to eliminate triable issues of fact as to whether he directed or controlled the plaintiff’s work … . * * *

… [T]he plaintiff’s accident arose from the means and methods of the work, not from a dangerous premises condition …. . [Defendant] failed to establish his prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, since he failed to eliminate triable issues of fact as to whether he had the authority to supervise or control the plaintiff’s work … . Walsh v Kenny, 2023 NY Slip Op 04791, Second Dept 9-27-23

Practice Point: Here plaintiff was working on his employer’s (the defendant’s) private residence when injured. The defendant provided the materials and there was evidence he supervised the work. Therefore questions of fact precluded summary judgment on the Labor Law 241(6) cause of action (pursuant to the homeowner’s exemption to the Labor Law 241(6) cause of action), as well as on the Labor Law 200 and common law negligence causes of action.

 

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IN THIS FORECLOSURE ACTION, THE PROOF THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The proof the notice of foreclosure was mailed in accordance with RPAPL 1304 was insufficient:

… [T]he testimony of the plaintiff’s sole witness at trial, Lawrence Nardi, a case manager for the plaintiff’s servicer, Select Portfolio Servicing (hereinafter SPS), was insufficient to establish a standard office mailing procedure designed to ensure that notices were properly addressed and mailed … . Moreover, while the plaintiff presented copies of 90-day notices containing a 20-digit bar code, those letters contained no language indicating that they were sent by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service … . In addition, the plaintiff failed to present any receipt or corresponding document issued by the U.S. Postal Service showing that the notice was actually sent by first-class or certified mail more than 90 days prior to commencement of the action … . Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 … . U.S. Bank N.A. v Kissi, 2023 NY Slip Op 04790, Second Dept 9-27-23

Practice Point: Here the bank did not prove the notice of foreclosure was mailed in accordance with RPAPL 1304. Therefore the referee’s report should not have been confirmed.

 

A MOTION FOR LEAVE TO RENEW CAN BE BASED UPON A CLARIFICATION OF DECISIONAL LAW, BUT NOT, AS WAS THE CASE HERE, ON A DECISION APPLYING ESTABLISHED LAW TO THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion for leave to renew should not have been granted because it was not based upon a change in law. Rather it was based upon a case in which established law was applied to the facts:

“A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law,” including, a clarification of decisional law ( …see CPLR 2221[e][2]). Here, however, the defendant failed to demonstrate such a change in the law … . Instead, the defendant merely pointed to case law … , in which this Court applied established law … to the facts presented in the particular case before it. Sharan v Christiana Trust, 2023 NY Slip Op 04789, Second Dept 9-27-23

Practice Point: A motion for leave to renew can be based on a change in the law, even a clarification of decisional law. But here the motion was improperly based upon a decision which merely applied established law to the facts.

 

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THE MOTION SEEKING A CIVIL CONTEMPT DETERMINATION COULD NOT BE HEARD BECAUSE THE UNDERLYING SUIT HAD BEEN SETTLED BY STIPULATION WITH PREJUDICE, STRIPPING SUPREME COURT OF SUBJECT MATTER JURISDICTION; A SUBJECT-MATTER-JURISDICTION ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the civil contempt action should have been dismissed because the underlying lawsuit had been settled with prejudice by stipulation. Because the issue relates to a court’s subject matter jurisdiction it can be raised on appeal at any time. The underlying lawsuit was a property dispute and concerned the location of a fence. After the stipulation settling the suit, defendants refused to sign a fence location agreement. Because the underlying suit was discontinued with prejudice the plaintiffs only option is to commence a plenary action:

… [T]he defendants’ assertion, raised for the first time on appeal, that the Supreme Court lacked jurisdiction to entertain the plaintiffs’ motion, is properly before this Court, as a defect in subject matter jurisdiction may be raised at any time … .

“A motion must be addressed to a pending action” … , and a court lacks jurisdiction to entertain a motion after the action has been “‘unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance'” … , “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain that branch of the plaintiffs’ motion which was to hold the defendants in civil contempt, since the action was unconditionally discontinued with prejudice by the parties’ stipulation, as memorialized in the settlement order … . Thus, the relief requested by the plaintiffs was not available by way of a motion, and could only be obtained by commencing a plenary action … . Riccio v Kukaj, 2023 NY Slip Op 04785, Second Dept 9-27-23

Practice Point: A stipulation settling a suit with prejudice strips the court of subject matter jurisdiction. Therefore a subsequent motion cannot be heard by the court and any further proceedings require a plenary action. A subject-matter-jurisdiction issue can be raised for the first time on appeal.

 

DEFENDANT-PETITIONER WAS ENTITLED TO RELEASE FROM PRE-INDICTMENT CUSTODY PURSUANT TO CPL 30.30 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the habeas corpus petition seeking defendant-petitioner’s release from pre-indictment custody should have been granted:

… [P]etitioner demonstrated that more than 90 days elapsed from the commencement of the defendant’s confinement on April 27, 2023, until July 31, 2023, the date the petitioner made an application to the Supreme Court pursuant to CPL 30.30(2)(a) for the defendant’s release. The Supreme Court nonetheless denied the petitioner’s application, concluding that the People were entitled to exclude an unspecified period of time attributable to a delay in satisfying their obligation to produce relevant portions of the grand jury minutes. The People asserted that this delay in complying with their obligation pursuant to CPL 245.20(1)(b) was caused by a backlog on the part of a court reporter in producing the minutes. The Supreme Court incorrectly determined that the circumstances surrounding the People’s production of the minutes constituted excludable delay, whether based on exceptional circumstances or some other ground set forth in CPL 30.30(4). Among other reasons, the People failed to demonstrate that the timing of the production of the minutes was beyond their control, or that they engaged in diligent efforts to produce the outstanding discovery by their trial readiness deadline … . People ex rel. Fast v Molina, 2023 NY Slip Op 04641, Second Dept 9-20-23

Practice Point: Here the reasons provided by the People for their inability to be ready for trial should not have been deemed adequate to meet the criteria for excludable delay pursuant to CPL 30.30.

 

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISION IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and did not demonstrate it complied with the notice-of-default requirement in the mortgage:

… [T]he plaintiff failed to establish … that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and three undated purported allonges, one of which was endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were each on a piece of paper completely separate from the note and the other allonges, were “so firmly affixed” to the note “as to become a part thereof,” as required by UCC 3-202(2) … .

Additionally, the plaintiff failed to establish its status as the holder of the note at the time of the commencement of the action. In her affidavit, a representative employed by the plaintiff’s loan servicer did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures, and therefore, the plaintiff failed to demonstrate that the records relied upon by the affiant were admissible under the business records exception to the hearsay rule … .

The plaintiff also failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . U.S. Bank N.A. v Yoel, 2023 NY Slip Op 04682, Second Dept 9-20-23

Practice Point: If the defendant in a foreclosure action alleges the bank lacks standing to bring the action, the bank must demonstrate it was the holder of the note at the time the action was brought. In addition, the UCC requires that allonges endorsed in blank be “firmly affixed” to the note.

 

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THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:

… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23

Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.

 

 

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PLAINTIFF WAS ELIGIBLE FOR RELEASE FROM JAIL PURSUANT TO CPL 180.80 BUT WAS KEPT INCARCERATED FOR AN ADDITIONAL 2 1/2 MONTHS; PLAINTIFF’S FALSE IMPRISONMENT AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined plaintiff’s causes of action for false imprisonment and negligence should not have been dismissed. Plaintiff sued the town because he was not released from custody pursuant to Criminal Procedure Law 180.80:

CPL 180.80 “requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted” … . * * *

The allegation that the defendant detained the plaintiff for an additional 2½ months after it was required to release him pursuant to CPL 180.80 is a very serious one. This Court notes that the defendant does not deny this allegation outright, but instead attempts to shift blame to the plaintiff for what would, if true, be its own grievous error. McKay v Town of Southampton, 2023 NY Slip Op 04664, Second Dept 9-20-23

Practice Point: Here the plaintiff was not released from jail when he was eligible for release pursuant to CPL 180.80. His lawsuit against the town for false imprisonment and negligence should not have been dismissed.

 

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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:

Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .

However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23

Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.

 

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