DANGEROUS PLAY AT SCHOOL?

People's perception of what is school age appropriate activity and what is dangerous play can differ.

Chiauzzi v Sewanhaka Cent. High Sch. Dist., 2019 NY Slip Op 02310, Decided on March 27, 2019, Appellate Division, Second Department:

"On April 27, 2011, at approximately noon, the plaintiff, who was then in the eighth grade, allegedly sustained injuries on the exterior grounds of the defendant's school during her lunch recess. A short fence, approximately the same height as the plaintiff's knees, separated a grass area from a concrete walkway. The plaintiff and two of her friends took turns running and jumping over this fence. The incident occurred approximately 10 to 15 minutes into this activity, after the plaintiff and her friends had each taken five or six turns jumping over the fence. As the plaintiff attempted to jump over the fence, the middle of her right shin struck the fence, causing her to fall on the concrete walkway. The plaintiff testified at a General Municipal Law § 50-h hearing and her deposition that she did not see any school personnel outside the school building either before or at the time of the incident. The plaintiff subsequently commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49; see Santos v City of New York, 138 AD3d 968, 969). However, "[s]chools are not insurers of safety, . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d at 49; see Paca v City of New York, 51 AD3d 991, 992). Here, the defendant established, prima facie, that the plaintiff was engaged in an age-appropriate activity that did not constitute dangerous play, and that the alleged lack of supervision was not a proximate cause of the accident (see Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650, 651-652). In opposition, the plaintiff failed to raise a triable issue of fact."

THE SECOND DEPARTMENT ADDRESSES THE FORECLOSURE CRISIS

Here is a guide to pursuing and defending a foreclosure action.

Bank of N.Y. Mellon v Gordon, 2019 NY Slip Op 02306, Decided on March 27, 2019, Appellate Division, Second Department:

"In the wake of the financial crisis that began in 2008, the trial courts of this state have faced an unprecedented spike in judicial foreclosure actions. The challenges presented by this dramatic increase in litigation have been compounded by poor record-keeping practices, a changing regulatory environment, inordinate delays, and inadequate legal representation. The sheer number of foreclosure cases has also resulted in a renewed focus on the legal principles underlying such actions and presented circumstances under which those principles must be extended and applied to new factual scenarios.

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion of trial-level dockets. For the reasons that follow, we modify the order appealed from.

1. Factual and Procedural Background

The plaintiff commenced this action to foreclose a mortgage. The defendant Dushaun Gordon interposed an answer which included 55 affirmative defenses, 5 counterclaims asserted against the plaintiff, and 2 cross claims asserted against the defendant Mortgage Electronic [*2]Registration Systems, Inc. (hereinafter MERS).

The plaintiff thereafter moved for, among other relief, summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due. Gordon opposed the plaintiff's motion and cross-moved pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS.

In a decision dated July 23, 2015, the Supreme Court determined, among other things, that the plaintiff was entitled to summary judgment on the complaint. A subsequent order entered August 7, 2015, upon the decision, inter alia, (1) granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due, and (2), in effect, denied Gordon's cross motion pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS. Gordon appeals from those portions of the order entered August 7, 2015. We modify.

2. Legal Analysis

A. General Principles

A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Such a motion must be supported "by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). To make a prima facie showing, the moving party must "demonstrate its entitlement to summary judgment by submission of proof in admissible form" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507; see Zuckerman v City of New York, 49 NY2d 557, 562). Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts" (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; see CPLR 3212[b]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 508). "Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 50, quoting Alvarez v Prospect Hosp., 68 NY2d at 324).

"In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" (Stukas v Streiter, 83 AD3d 18, 22; see Pearson v Dix McBride, LLC, 63 AD3d 895). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 AD3d 493, 493; see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Stukas v Streiter, 83 AD3d at 23). Accordingly, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; see 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449). "[W]here credibility determinations are required, summary judgment must be denied" (People v Greenberg, 95 AD3d 474, 483, affd 21 NY3d 439; see Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732; Campbell v Campbell, 43 AD3d 1264, 1266).
In addition, " [a] motion for summary judgment will not be granted if it depends on proof that would be inadmissible at the trial under some exclusionary rule of evidence'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 52, quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:18 at 27 [2005 ed]; see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652; US Bank N.A. v Madero, 125 AD3d 757, 758). "Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" (Nucci v Proper, 95 NY2d 597, 602 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 508).
However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 55), for "[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519). Indeed "in civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 54-55, quoting Jerome Prince, Richardson on Evidence § 8-108 [Farrell 11th ed 2008]; see Matter of Findlay, 253 NY 1, 11; Ford v Snook, 205 App Div 194, 198, affd 240 NY 624).

B. Standing

In this case, Gordon contends that the Supreme Court should not have awarded the plaintiff summary judgment on the complaint insofar as asserted against him because, in his view, there are triable issues of fact as to whether the plaintiff has standing to maintain this action. This
contention is without merit.

"[W]here, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue in its responsive pleading" (US Bank N.A. v Nelson, ___ AD3d ___, ___, 2019 NY Slip Op 00494, *2-3 [2d Dept 2019]; see Matter of Fossella v Dinkins, 66 NY2d 162, 167; BAC Home Loans Servicing, LP v Alvarado, 168 AD3d 1029, 1030; see also Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 142-143). Here, Gordon asserted standing as an affirmative defense in his answer. Accordingly, the issue of standing is properly before this Court (cf. US Bank N.A. v Nelson, ___ AD3d ___, 2019 NY Slip Op 00494).

Where the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983, 983-984; HSBC Bank USA, N.A. v Calderon, 115 AD3d 708, 709; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced" (Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 360-362). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754; see JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 644-645).

Here, the plaintiff established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note, which had been endorsed in blank, at the time the action was commenced. In this regard, the plaintiff submitted the affidavit of its attorneys' employee, Kyra Schwartz, who stated that certain business records, which were maintained by her employer and attached to her affidavit, demonstrated that the plaintiff's attorneys were in possession of the original note endorsed in blank since August 19, 2011, a date which was prior to the commencement of this action (see Bank of Am., N.A. v Tobing, 163 AD3d 518, 519-520; U.S. Bank, N.A. v Cardenas, 160 AD3d 784, 785; PennyMac Corp. v Chavez, 144 AD3d 1006, 1007; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876, 877).

In opposition, Gordon failed to raise a triable issue of fact with respect to the issue of standing. Inasmuch as the mortgage "passes with the debt as an inseparable incident" (U.S. Bank,
N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361), Gordon's arguments regarding the validity and timing of the mortgage assignment failed to raise a triable issue of fact in opposition (see Wells Fargo Bank, N.A. v Heiney, 168 AD3d 1126, 1127; Aurora Loan Servs., LLC v Vrionedes, 167 AD3d 829, 830; Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 900).

Gordon further contends that Schwartz's affidavit was insufficient to lay a proper foundation for the admissibility of the business records that she attached to it. This contention is also without merit.
"Records made in the regular course of business are hearsay when offered for the truth of their contents" (Jerome Prince, Richardson on Evidence § 8-301 [Farrell 11th ed 1995]). "The statutory business records rule, now CPLR 4518(a), was originally enacted in 1928 to overcome the [*3]deficiencies of common law rules which severely hampered proof of many valid claims" (id.; see People v Kennedy, 68 NY2d 569, 578; Johnson v Lutz, 253 NY 124, 127-128).

The current version of the business records rule provides that

"[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518[a]).
An "electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (id.). A court "may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record" (id.). However, "[a]ll other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility" (id.; see People v Kangas, 28 NY3d 984, 985-986; cf. Fed Rules Evid rule 803[6]).

Accordingly, to establish a foundation for the admission of a business record, the proponent of the record must satisfy the requirements identified in the statute (see CPLR 4518[a]). First, the proponent must establish "that the record be made in the regular course of business—essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business" (People v Kennedy, 68 NY2d at 579). Second, the proponent must also demonstrate "that it be the regular course of such business to make the record . . . essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record" (id. at 579-580). Third, the proponent must establish "that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured" (id. at 580).

In addition to these statutory requirements, the Court of Appeals has held that "[u]nless some other hearsay exception is available, admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant" (Matter of Leon RR, 48 NY2d 117, 123 [citation omitted]; see People v Patterson, 28 NY3d 544, 550; Johnson v Lutz, 253 NY at 127-128; Murray v Donlan, 77 AD2d 337, 346). That said, "[i]t would clearly defeat the utility of CPLR 4518 to require the testimony of all persons involved in creating the record" (Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed 1995]).

Finally, under the circumstances here, it bears noting that the business record exception to the hearsay rule applies to a "writing or record" (CPLR 4518[a]). 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" (Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed 1995]), it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (see generally Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y., 133 AD3d 631, 632-633; 35 Carmody-Wait 2d § 194:94 [2019]; cf. 9 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 4518.20). Accordingly, "[e]vidence of the contents of business records is admissible only where the records themselves are introduced" (35 Carmody-Wait 2d § 194:94 [2019]; see People v Barnes, 177 AD2d 989; see also People v Olivero, 27 Misc 3d 1218[A], 2010 NY Slip Op 50794[U] [Civ Ct, Kings County]; People v Ross, 12 Misc 3d 755, 764 [Crim Ct, Kings County 2006]). "Without their introduction, a witness's testimony as to the contents of the records is inadmissible hearsay" (35 Carmody-Wait 2d § 194:94 [2019]; see U.S. Bank Natl. Assn. v 22 S. Madison, LLC, ___ AD3d ___, ___, 2019 NY Slip Op 01635, *2 [2d Dept 2019]; People v Barnes, 177 AD2d 989). Of course, generally speaking, a witness may always testify as to matters which are within his or her personal knowledge through personal observation (see Jerome Prince, Richardson on Evidence §§ 4-301, 6-210 [Farrell 11th ed 1995]; see also People v Daddona, 81 NY2d 990, 992; Pease v Smith, 61 NY 477, 484-485; People v Duffy, 124 AD2d 258, 260; Levy v Huwer, 80 App Div 499, 501-502, affd 176 NY 612).

Here, Schwartz stated in her affidavit that she was employed by the law firm that represented the plaintiff in this action. Schwartz stated that she was "employed as the manager of a group of employees . . . that is responsible for receiving original loan documents from the firm's clients [and] documenting the receipt of [those] original loan documents." She stated that, when a client forwards a file containing original loan documents, "[her] staff makes a computer entry . . . confirming [their] receipt." These entries were made "at or about the time of the receipt of the original loan documents," and the records of such events were "created and maintained in the ordinary course of [the] business" of the plaintiff's attorneys. Finally, Schwartz stated that "[i]t was the normal course of [the firm's] business to store these records as computer entries."

Schwartz further stated that she reviewed the firm's business records relative to this case, which records showed that the original note was received on August 19, 2011. Attached to Schwartz's affidavit was "a true and accurate printout [she] made of the computer entry confirming the receipt . . . of the original note." Schwartz also attached a copy of the original note to her affidavit, and affirmed that she had compared this copy "to the original note which remains in storage under the custody of [her] team" and that the copy was "a true and accurate copy of the original note."
Contrary to Gordon's contention, Schwartz did not need to demonstrate her familiarity with the record-keeping practices and procedures of the plaintiff, the original lender, Countrywide Home Loans, Inc. (hereinafter Countrywide), or MERS, in order to lay a proper foundation for the admission of the business record attached to her affidavit. Schwartz sought to lay a foundation for the admission of a business record maintained by her employer, the plaintiff's attorneys. She did not seek to lay a foundation for business records produced or maintained by any of the other entities identified by Gordon. As this Court has previously observed, "[t]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" (Citigroup v Kopelowitz, 147 AD3d 1014, 1015; see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 826). Accordingly, under the circumstances, since Schwartz only sought to lay a foundation for a business record produced and maintained by her own employer, she was only required to set forth her familiarity with her employer's record-keeping practices and procedures (see generally CPLR 4518[a]; People v Kennedy, 68 NY2d at 579-580; cf. Aurora Loan Servs., LLC v Baritz, 144 AD3d 618; US Bank N.A. v Handler, 140 AD3d 948; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650).

Gordon's remaining arguments relating to the issue of standing are either improperly raised for the first time on appeal or without merit. Accordingly, since Gordon failed to raise a triable issue of fact with respect to the issue of standing in opposition to the plaintiff's prima facie showing, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment dismissing the affirmative defenses that raised the issue of standing, to wit, the 1st, 2nd, 3rd, 4th, 5th, 14th, 15th, 26th, 27th, and 36th affirmative defenses (see Aurora Loan Servs., LLC v Vrionedes, 167 AD3d at 830; cf. US Bank N.A. v Weinman, 123 AD3d 1108, 1109-1110).

C. Default

Although vague and inartfully drafted, Gordon's brief, liberally construed, in effect, contends that the Supreme Court should not have awarded the plaintiff summary judgment on the complaint insofar as asserted against him and dismissing the 20th affirmative defense because, in his view, the plaintiff failed to sustain its initial burden of demonstrating that he defaulted in the repayment of the subject note. This contention has merit.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Aurora Loan Servs., LLC v Vrionedes, 167 AD3d at 830; Giller v Weiss, 140 AD3d 1117, 1118; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1206-1207). A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from "a person having [personal] knowledge of the facts" (CPLR 3212[b]), or by other evidence "in admissible form" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 507). Here, as Gordon correctly contends, the plaintiff's submissions failed to lay a proper foundation for the admission of the business records relied upon by the plaintiff to establish Gordon's default in the repayment of the subject loan.
The plaintiff relied upon the affidavit of Rosalind Carroll to lay a foundation for the [*4]admission of business records purporting to show that Gordon had defaulted under the terms of the subject note by failing to make required monthly payments. Carroll stated that she was a "document coordinator" for an entity named "Bayview Loan Servicing, LLC" (hereinafter Bayview), which was identified by Carroll as a "servicer for the plaintiff." Carroll went on to state: "According to the business records I have reviewed, [Gordon] defaulted on the loan by failing to make monthly payments due on May 1, 2008 and continuing to the present."

Although Carroll adequately described the record-keeping practices and procedures utilized by Bayview, and adequately stated her familiarity with those practices, she did not actually attach or otherwise incorporate any of Bayview's business records to her affidavit. Accordingly, to the extent that Carroll's purported knowledge of Gordon's default was based upon her review of unidentified business records created and maintained by Bayview, her affidavit constituted inadmissible hearsay and lacked probative value (see Flick Lbr. Co. v Breton Indus., 223 AD2d 779, 780; People v Barnes, 177 AD2d 989; Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479; see also 35 Carmody-Wait 2d § 194:94 [2019]).

The only purported business record specifically identified by Carroll as demonstrating Gordon's default is a document dated June 16, 2008. The record indicates that this document was annexed to Carroll's affidavit. However, Carroll does not specifically allege that Bayview created the document. Furthermore, the document, on its face, indicates that it was created by Countrywide, the original lender, and Carroll does not allege that she is personally familiar with that entity's record-keeping practices and procedures. As previously noted, "[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (Citibank, N.A. v Cabrera, 130 AD3d 861, 861 [emphasis added]).

Of course, Carroll's status as an employee of Bayview does not necessarily mean that she is incompetent to lay a foundation for the admission of business records that were created by another entity (see People v Cratsley, 86 NY2d 81, 90). It is true that as a general rule, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records" (Standard Textile Co. v National Equip. Rental, 80 AD2d 911, 911; see People v Cratsley, 86 NY2d at 90). However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business (see People v Cratsley, 86 NY2d at 90-91; Bank of Am., N.A. v Brannon, 156 AD3d 1, 8; State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296; People v DiSalvo, 284 AD2d 547, 548-549; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728; cf. United States v Jakobetz, 955 F2d 786, 800 [2d Cir]; Matter of Ollag Constr. Equip. Corp., 665 F2d 43, 46 [2d Cir]). Indeed, "[t]he reports of an independent contractor regularly relied on by the business may qualify as the business' record" (Jerome Prince, Richardson on Evidence § 8-307 [Farrell 11th ed 1995]; cf. General Ins. Co. of Am. v United States Fire Ins. Co., 886 F3d 346, 358 [4th Cir]; Cocroft v HSBC Bank USA, N.A., 796 F3d 680 [7th Cir]).

Here, however, Carroll failed to attest to her personal knowledge of Countrywide's record-keeping practices, and failed to allege that the document that she attached to her affidavit was incorporated into Bayview's records and routinely relied upon by Bayview in its business. Accordingly, under the circumstances, Carroll's affidavit was insufficient to lay a proper foundation for the admission of the document dated June 16, 2008 (see e.g. Aurora Loan Servs., LLC v Baritz, 144 AD3d at 619-620; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; Citibank, N.A. v Cabrera, 130 AD3d at 861-862).

Moreover, as Gordon correctly contends, certain factual assertions made by Carroll in her affidavit which are relevant to the issue of Gordon's default are directly contradicted by the documents that she attached to her affidavit. Other factual assertions made by Carroll in her affidavit are contradicted by other portions of her own affidavit. These contradictions raise issues of credibility (see e.g. Taieb v Hilton Hotels Corp., 131 AD2d 257, 261), and, as such, Carroll's affidavit failed to eliminate all triable issues of fact with respect to the issue of Gordon's default (see Cristescu v Gasparis, 148 AD3d 669; see generally Pryor & Mandelup, LLP v Sabbeth, 82 AD3d at 732).

We note that the plaintiff did actually submit payment records relating to Gordon's mortgage in support of its motion. However, these payment records were not attached to, or [*5]otherwise incorporated into, Carroll's affidavit, and she did not identify these records or make specific reference to them. Rather, the plaintiff inexplicably attached these payment records as an exhibit to its attorney's affirmation. The plaintiff's attorney does not allege personal knowledge of the record-keeping practices and procedures of the entity that created these payment records (see generally Zuckerman v City of New York, 49 NY2d at 563). Since the plaintiff failed to lay the proper foundation for the admission of the payment records into evidence, those records do not constitute admissible evidence and cannot serve to establish, prima facie, Gordon's default in the repayment of the subject loan (see generally Mallen v Farmingdale Lanes, LLC, 89 AD3d 996, 997; Roldan v New York Univ., 81 AD3d 625, 627; Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Daliendo v Johnson, 147 AD2d 312, 321).

In sum, since the plaintiff failed to establish, prima facie, Gordon's default in the repayment of the subject loan through the submission of evidence in admissible form, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the 20th affirmative defense asserted by that defendant, and to appoint a referee to compute the amount due (see Fulton Holding Group, LLC v Lindoff, 165 AD3d 1045, 1047-1048; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954).
D. Gordon's Remaining Contentions
Addressing the remaining affirmative defenses asserted in his answer, Gordon contends that they should not have been dismissed by the Supreme Court, sua sponte. Contrary to Gordon's contention, the court did not "sua sponte" strike Gordon's answer and counterclaims. Rather, this relief was specifically requested in the plaintiff's motion papers.

Further, we agree with the Supreme Court's determination to deny those branches of Gordon's cross motion which were pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him, as he failed to demonstrate his entitlement to such relief. Gordon argues that the plaintiff's general denials of the allegations underlying his counterclaims constituted judicial admissions that prove fatal to the plaintiff's complaint. Formal judicial admissions include facts that are "admitted" by a party's pleadings (Zegarowicz v Ripatti, 77 AD3d 650, 653). To constitute a judicial admission, a statement must be "deliberate, clear, and unequivocal" (Rahman v Smith, 40 AD3d 613, 615). The plaintiff's general denials do not meet these criteria.

Gordon also contends that the Supreme Court should not have, in effect, denied that branch of his cross motion which was for leave to enter a default judgment on his cross claims asserted against MERS. To be entitled to such relief, Gordon was required to demonstrate, inter alia, "proof of service" of the cross claims on MERS (CPLR 3215[f]). Although Gordon's counsel affirmed that proof of service of the answer with cross claims upon MERS had been submitted in connection with Gordon's cross motion, the record on appeal does not support this assertion. Since Gordon failed to submit proof of service of process on MERS, he failed to satisfy the requirements for demonstrating his entitlement to leave to enter a default judgment on his cross claims asserted against that defendant (see generally Stevens v Law Off. of Blank & Star, PLLC, 155 AD3d 917, 918).

3. Conclusion

In light of the foregoing, we modify the order appealed from, insofar as described below. Inasmuch as the Supreme Court's denial of that branch of Gordon's cross motion which was to compel disclosure, in effect, pursuant to CPLR 3124 appears to have been premised on its granting of that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Gordon, we remit the matter to that court for a new determination of the branch of the defendant's cross motion which was to compel discovery (see Bank of N.Y. Mellon v Cutler, 154 AD3d 910, 912).

Accordingly, the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Dushaun Gordon and dismissing the 20th affirmative defense asserted by that defendant, and to appoint a referee to compute the amount due, and substituting therefor a provision denying those branches of the plaintiff's motion, and (2) by deleting the provision thereof, in effect, denying that branch of the cross motion of the defendant Dushaun Gordon which was to compel disclosure, in effect, pursuant to CPLR 3124; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of that branch of the cross motion of the defendant Dushaun [*6]Gordon which was to compel disclosure, in effect, pursuant to CPLR 3124."

MORTGAGE FORECLOSURE - RPAPL 1306 DEFECT NOT A DEFENSE

HSBC Bank USA, N.A. v Ahmad, 2019 NY Slip Op 50252(U), Decided on March 7, 2019 ,Supreme Court, Suffolk County:

"CPLR 2001 ALLOWS COURT TO IGNORE ERROR IN RPAPL § 1306 FILING

Although there are only a few cases that deal with errors in RPAPL § 1306 filings, this court has previously dealt with the issue of apparent errors made in RPAPL § 1306 certificates in two other cases, Castle Peak 2012-1 Loan Trust Mortg. Backed Notes, Series 2012-1 v Connor, 2018 NY Slip Op 31131 (U) (Sup Ct, Suffolk Co., 2018), Bank of New York Mellon v Dougherty, 58 Misc 3d 1212 (A), 2018 NY Slip Op 5064 (U) (Sup Ct, Suffolk Co., 2018) finding that errors in the filing with either the NYS Banking Department ("Banking Dept."), or the Division of Financial Services ("DFS"), could be considered an error or irregularity that could be disregarded by the court as a substantial right of defendant has not been prejudiced (CPLR 2001). In Aurora Loan Services, LLC v Weisblum, 83AD3d 95, at 107-108 (2d Dept 2011), the court declined to express an opinion when, if ever, a defect or irregularity in the content of a notice might be so minimal as to warrant the exercise of the court's discretion under CPLR 2001 to avoid dismissal of an action, making it clear that there could be possible circumstances under which a defect or irregularity in the strict compliance required by RPAPL Article 13 may be so de minimus as to warrant ignoring it in an exercise of the court's discretion under CPLR 2001.

Defendant's argument that "strict" compliance is mandated and requires dismissal exalts form over compliance with the intent and purpose of the statute. Unlike RPAPL §§ 1303 and 1304 which were intended by the Legislature to provide borrowers/potential defendants with substantive notice of their rights and the availability of legal and counseling services to avoid foreclosure or to assist in their defense, RPAPL § 1306 was not intended to provide borrowers with any assistance or rights. The purpose for plaintiff, or its servicer, filing the certificate reflected in the versions of the statute in effect at the time of the mailings on July 19, 2011 and the date of the filing on July 20, 2011 is stated in RPAPL § 1306 (4):

All such information shall be used by the superintendent exclusively for the purposes of monitoring on a statewide basis the extent of foreclosure filings within this state, to perform an analysis of loan types which were the subject of a pre-foreclosure notice and directing as appropriate available public and private foreclosure prevention and counseling services to borrowers at risk of foreclosure. The superintendent may share information contained in the database with housing counseling agencies designated by the division of housing and community renewal as well as with other state agencies with jurisdiction over housing, for the purpose of coordinating or securing help for borrowers at risk of foreclosure.

This does not provide any right or advantage to a borrower/potential defendant, it only [*8]was to be a source of statistics for the state to analyze the types of residential loans going into default so that resources could be properly apportioned and assigned to help prevent future foreclosures. To accomplish this purpose it is totally irrelevant whether both borrower defendants had separate filings made, filing for either one would provide the state with the statistical information it needed to evaluate future allocation of public and private resources to address the "foreclosure crisis." By plaintiff's then servicer failing to file an RPAPL § 1306 certificate with the Banking Department that mentioned both defendants, or to file one for each defendant individually, and instead filing one that provided all the required information but only listed Shakil Ahmad did not deprive the State of the information it needed, nor did it prejudice defendant by depriving her of any substantial right. Therefore, under these facts, this court finds that the failure to file an RPAPL § 1306 certificate as to defendant is an error, omission or irregularity which should be disregarded by the court pursuant to CPLR 2001 as a substantial right of defendant has not been prejudiced. To do otherwise would exalt form over substance. Defendant's claim that a failure to comply with the requirements of RPAPL § 1306 requires dismissal of the action against her is dismissed, and that portion of her motion to dismiss made at the close of all the evidence is denied."

A SALE OF HOME GOES BAD - DELAY IN RETURN OF DOWN PAYMENT

When a contract of sale is contingent on a mortgage commitment, the buyer should document its attempt at getting the loan. Otherwise, the issue of returning the down payment may be litigated.

Doony, Inc. v Palmiotto, 2019 NY Slip Op 02065, Decided on March 20, 2019, Appellate Division, Second Department:

"On June 23, 2017, the plaintiff entered into a contract to purchase real property from the defendant Mark Palmiotto (hereinafter the seller) for $435,000 and, upon execution of the contract, it tendered a down payment of $43,500. Pursuant to the contract, the plaintiff was required to promptly apply to one or more institutional lenders for a mortgage loan in the amount of $391,500. The plaintiff's obligations to complete the sale were contingent upon the issuance of a commitment from an institutional lender on or before 30 days from receipt by its attorney of a fully executed contract (hereinafter the commitment date). The contract of sale expressly provided that "a commitment conditioned on the Institutional Lender's approval of an appraisal shall not be deemed a Commitment' hereunder until an appraisal is approved."

On August 7, 2017, the plaintiff obtained a commitment from a lender conditioned upon an appraisal showing an "as is" fair market value of the property of not less than $435,000. The appraisal, which was performed on August 18, 2017, and issued on August 31, 2017, valued the premises at $395,000. As a result, the plaintiff asserted that no commitment as defined by the contract had been issued, and demanded the return of its down payment, but the defendants refused to return the funds. In January 2018, the plaintiff commenced this action to recover its down payment, and after joinder of issue but prior to discovery, moved, inter alia, for summary judgment on the complaint. As relevant here, the Supreme Court denied that branch of the plaintiff's motion which was for summary judgment on the complaint.

The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320; Samson v Sapphire Capital, Inc., 74 AD3d 1172). In her supporting affidavit, the plaintiff's principal conceded that the plaintiff delayed in filing an [*2]application for a mortgage loan, and she failed to state when the plaintiff applied and the number of institutional lenders to which application was made. Moreover, the plaintiff failed to set forth the date on which its attorney received the fully executed contract, thereby rendering it impossible to ascertain if the lender's denial was timely, so as to trigger the plaintiff's right to cancel. Under such circumstances, the plaintiff failed to eliminate all triable issues of fact as to whether, inter alia, it made a prompt application for a mortgage loan and whether it properly cancelled the contract (see Dazzo v Kilcullen, 127 AD3d 1126, 1128; Hsieh v Pravder, 106 AD3d 694, 695; Samson v Sapphire Capital, Inc., 74 AD3d at 1173). Since the plaintiff failed to meet its prima facie burden, we need not consider the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Miloslavskaya v Gokhberg, 126 AD3d 678, 679).

Accordingly, we agree with the Supreme Court's determination denying that branch of the plaintiff's motion which was for summary judgment on the complaint."

MORTGAGE FORECLOSURE - WHO IS BEHIND THE LEGAL FEES OF THE HOMEOWNER DEFENSES?

We all know the high cost of litigation.

In a recent case, BANK OF NEW YORK MELLON, ETC., Appellant, v. ALICE J. DIEUDONNE, Respondent, ET AL., Defendants. 2017-08956, Index No. 518577/16. Appellate Division of the Supreme Court of New York, Second Department. Decided March 13, 2019, the court held that the statute of limitations barred foreclosure because, in a prior action, the mortgage was accelerated by the filing of a complaint to foreclose the mortgage with an election to accelerate, even though a provision in the mortgage preserves the borrower’s right to make installment payments rather than the full debt. 

A review on e file reveals this was litigated vigorously. After service was a motion to dismiss by homeowner, involving memorandums of laws and affidavits, opposition papers, reply papers, a motion for leave to re argue, etc. all the way up to the appeal. The debt in issue appears to have been about 250G as of 2008 so there is 11 years of interest and other fees to be added. According to Trulia, etc., the house has a value of about 500G. My compliments to the homeowner's counsel who, reviewing the papers submitted, did an excellent job.

Through my many years of experience at the mortgage foreclosure clinic at the Nassau County Bar Association, most homeowners cannot afford legal fees for defense. If you cannot pay your mortgage, usually it is because income has dropped substantially so that the home is no longer affordable. And if you cannot pay your mortgage, can you afford legal fees? Many times in reading these cases on these successful homeowner cases on middle class homes, I wonder how the homeowner can afford such a litigation if they cannot afford the mortgage.

An article came out last week, "Mortgage Acceleration and Statute of Limitations Developments in the Second Department" by Adam M. Swanson and Jessie D. Bonaros, NYLJ, March 20, 2019. And there is a statement, of which I cannot find the evidence behind it, but I note as follows:

"Courts are giving out free houses but not to homeowners—to real estate speculators who are paying pennies to the homeowner for the right to fight foreclosure....Although it appears that these decisions benefit homeowners, all the benefits are going to real estate speculators while these decisions chill mortgage lending in New York."

MORTGAGE FORECLOSURE - PROVING RPAPL 1304 COMPLIANCE

Citimortgage, Inc. v Succes, 2019 NY Slip Op 02058, Decided on March 20, 2019, Appellate Division, Second Department:

"RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106; see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). RPAPL 1304(2) requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower. "Proper mailing may be proven by documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518" (Citimortgage, Inc. v Wallach, 163 AD3d 520, 521; see CitiMortgage, Inc. v Espinal, 134 AD3d 876, 878).

Here, the plaintiff relied upon the affidavit of an employee who claimed that the plaintiff's business records showed that RPAPL 1304 notices were sent by certified and first-class mail. However, the documentary evidence submitted in support of those claims redacted certain tracking numbers and failed to establish, prima facie, that the notices were mailed by first-class mail (cf. Citimortgage, Inc. v Wallach, 163 AD3d at 521; Citimortgage, Inc. v Banks, 155 AD3d 936, 937). Since the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 757)."

WHEN ARE CHRONIC LATE PAYMENTS A SUBSTANTIAL DEFAULT

A rent regulated apartment in New York is a valuable asset mainly because of the rights of renewal and limits on rent increases. But this asset can be lost due to constant late payments.

Lincoln 64 Flats LLC v. Stranahan,  Date filed: 2019-02-25 Court: Civil Court, Kings, Judge: Judge Marc Finkelstein, Case Number: 71779/18:

"The standard to sustain a chronic late payment eviction proceeding is as follows:

A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a ‘substantial obligation’ of the tenancy (see, Sharp v. Norwood, 89 NY2d 1068; 9 NYCRR 2524, 3 [a]).

Adam’s Tower, Ltd. Partnership v. Richter, 186 Misc 2d 620 (App Term, 1st Dept).

In order to prevail in a chronic nonpayment of rent case commenced as a violation of a substantial obligation of the tenancy, petitioner must prove that “it was required to commence frequent nonpayment proceedings in a relatively short period of time.” 601 West Realty LLC v. Chapa, 2003 NY Slip Op 51253(U) (Civ Ct, NY County). See e.g., Adam’s Tower, supra (nine nonpayment proceedings in three years); Pamela Equities Corp. v. Coverton, NYLJ, July 18, 1990, p 18, col 1 (App Term, 1st Dept) [seven nonpayment proceedings in two years]; Chelsea 19 Assoc v. Minetti, NYLJ, October 27, 1986, p 13, col 6 (App Term, 1st Dept) [five nonpayment proceedings in two years]; 2564 Co. v. D’Addario, 35 Misc 2d 176 (App Term, 1st Dept 1961) [eleven nonpayment proceedings in one and a half years]; 25th Realty Associates v. Griggs, 150 AD2d 155 (1st Dept 1989) [eleven nonpayment proceedings in six years]. See also, PWV Acquisition, LLC v. Maddox, 2005 NY Slip Op 50955(U) (App Term, 1st Dept).

However, when evaluating whether a landlord has established a prima facie case of unjustified rent defaults on the part of the tenant, those nonpayment proceedings that were “not pursued” should not be “charged against” the tenant. 31-67 Astoria Corp v. Cabezas, 2017 N.Y. Misc. LEXIS 1160, 2017 NY Slip OP 50432(U) (App Term, 2d Dept 2017). See also, Chama Holding Corp v. Taylor, 2012 N.Y. Misc. LEXIS 4347, 2012 NY Slip OP 22255 (App Term, 1st Dept 2012). Here, the case summary sheet for Index No. 85101/15, annexed as Exhibit I, clearly indicates that this proceeding was not pursued by the landlord. The petition was filed on August 24, 2015 and nothing at all occurred in the case until July 13, 2018 when it was administratively dismissed. Therefore the 2015 proceeding is not charged against respondent. As to the remaining two 2017 proceedings respondent argues they should not be charged against respondent because although petitioner admittedly obtained a default possessory judgment and a warrant of eviction in both cases, petitioner did not pursue the cases thereafter. This argument is not correct. The court finds that a landlord not taking action to further proceed to eviction after obtaining a default judgment and warrant of eviction is not what 31-67 Astoria Corp and Chama Holding Corp mean in holding that a case not pursued by a landlord is not to be charged against the tenant. As opposed to the 2015 proceeding, petitioner did pursue the 2017 proceedings to the point of judgment and warrant.

However, what is left are only two nonpayment proceedings to support petitioner’s claim of chronic rent delinquency. The court finds that under the standard set forth in Adam’s Tower. Ltd. Partnership v. Richter, supra, only two nonpayment proceedings during respondent’s nine year tenancy do not constitute “a history of repeated nonpayment proceedings brought to collect chronically late rental payments so as to support an eviction proceeding on the ground that the tenant has violated a substantial obligation of the tenancy.” Other decisions holding that the commencement of two remaining nonpayment proceedings fails to establish a pattern of unjustified rent defaults on the tenant’s part to constitute a violation of a substantial obligation of the tenancy include: Chama holding Corp v. Taylor, supra; Hudson St. Equities v. Circhi, 2005 N.Y. Misc. LEXIS 2410, 2005 NY Slip Op 51764(U) (App Term, 1t Dept 2005); Eva Stern 500 Llc v. Streat, 2018 NYLJ LEXIS 2765 (Civ Ct, Kings County); 3424 Dekalb Assocs v. Pabon, 2019 NYLJ LEXIS 383 (Civ Ct, Bronx County)."

WHAT IS LAW OFFICE FAILURE

In this case, counsel alleged law office failure as a reasonable excuse for not filing for a default judgment when seeking an exception pursuant to CPLR 3215 (c) for entry of judgment after the expiration of one year after the default. However, this court wanted specific facts of the office failure not just the mere allegation.

Capital One Bank (USA), N.A. v Eastman, 2019 NY Slip Op 50253(U), Decided on March 6, 2019, Civil Court Of The City Of New York, Kings County Roper, J.:

"Law office failure may be viable grounds for reasonable excuse (Matter of Esposito, 57 AD3d 894 [2d Dept 2008]). However, the bar is high. Even though the court has discretion pursuant to CPLR 2005, "as a matter of law in the interests of justice to excuse delay or default resulting from law office failure," said excuse must be so presented with detailed articulable facts that are not amorphous, vague or subject to arbitrary interpretations (CPLR 2005; CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]; HSBC Bank USA, N.A. v Wider, 101 AD3d 683 [2d Dept 2012]). The Appellate Division, Second Division held:

"The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto."

(Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 964 [2d Dept 2018]). "Here, the plaintiff's assertions that it did not take any proceedings for entry of judgment within one year after the defendants' default due to law office failure occasioned by the dissolution of the law firm originally representing it, combined with delays caused by Hurricane Sandy in 2012, were conclusory and unsubstantiated, and did not rise to the level of a reasonable excuse (see Bank of NY Mellon v Colucci, 138 AD3d 1047, 1047-1048, [2016]; Buchakian v Kuriga, 138 AD3d 711, 712-713, [2016]; Baruch v Nassau County, 134 AD3d at 659; Ryant v Bullock, 77 AD3d 811, 812 [2010])."

(U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852 [2d Dept 2016]). "Here, the affirmation of an attorney from the law firm representing the appellants explained that the firm was downsizing significantly, two attorneys who had been handling the case were no longer with the firm, and the newly-assigned attorney's secretary, upon whom the attorney relied for calendaring matters, had recently left the firm. This was a sufficiently detailed explanation for the law firm's failure to appear (see Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634, 636 [2007]; Friedman v Crystal Ball Group, Inc., 28 AD3d 514, 515 [2006]; Weekes v Karayianakis, 304 AD2d 561, 562 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993])."

(Matter of Esposito, 57 AD3d 894, 895 [2d Dept 2008]). "In this case, the excuse proffered by the defendants was limited to the self-serving and unsubstantiated allegations" (Morris v Metropolitan Transp. Auth., 595 NYS 2d 539, 540 [2d Dept 1993]). "Here, defense counsel's allegation of law office failure was vague, conclusory, [*4]unsubstantiated (see HSBC Bank USA N.A. v Wider, 101 AD3d 683 [2012]; Cantor v Flores, 94 AD3d 936, 937 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 789-790 [2011]), and unreasonable under the circumstances (cf. Stolpiec v Wiener, 100 AD2d 931, 932 [1984])."

(CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]).

In the instant matter herein, plaintiff as movant fails to provide detailed articulable facts and allegations as to its law office failure to viably establish reasonable excuse for the delay in filing entry of judgment after default. It strains credulity and is indeed an affront to this Honorable Court that plaintiff's law office failure upon which it relies for its reasonable excuse to satisfy the high bar for the "sufficient cause" exception in this strict mandatorily applied statute of CPLR 3215 (c) is encapsulated merely as, "Plaintiff's counsel inadvertently allowed the one-year period to elapse."[FN1] "Inadvertently", accidentally, unwittingly, mistakenly or casually, is merely an "oops" defense where not accompanied by articulable substantiated corroborating facts. Indeed, the court cannot entertain or give viability to a pro-se party arguing such a defense wholly devoid of any substance, nor likewise even more so to that of a represented party as plaintiff herein in this instant matter. Here, as pled by plaintiff with lack of specificity, including dates, times, place of occurrence and substantiating facts for law office failure. No qualifications, no specifics, no articulable facts, no colorable legal arguments whatsoever. Plaintiff failed to even attempt to set forth any caselaw with legal analysis for its position. The lack thereof of facts and of legal argument is a sanctionable frivolous filing of this instant motion.[FN2] Plaintiff presents no relevant prevailing precedential law utilizing the most basic reasoning skills of a law school student to provide a brief of its legal position for the court to consider as to the remedy that's sought by movant. Where the law is not in a movant's favor, at the very least present the current state of the law to the court and then movant may argue to differentiate the facts from the prevailing holdings against movant's position. Court finds that failure to so do and merely make a vague, conclusory, unsubstantiated, arbitrarily [*5]suggestive statement is a frivolous filing unnecessarily clogging up the very strained judicial resources, which negatively impacts the efficiency of rendering justice to our citizens. Such frivolous filings are particularly diametrically opposed to the intent of Excellence Initiative by Honorable Chief Judge.[FN3]"

AN IMPROPER CONFESSION OF JUDGMENT

In some cases, a confession of judgment might be included as part of a contract as a form of personal guarantee. This would establish the document as a provision to be enacted if the borrower does not fulfill his or her obligations during the agreed upon time frame. But certain rules must be strictly followed and they were not in this case.

Parker Waichman, LLP v Getreu, 2019 NY Slip Op 01783, Decided on March 13, 2019, Appellate Division, Second Department:

"In early February 2013, the defendant executed a blank affidavit of confession of judgment in favor of the plaintiff for "unpaid attorney's fees and expenses due on cases plaintiff referred to the defendant for continued prosecution as co-counsel to plaintiff's law firm and in accordance with the terms of the letter agreement entered into between plaintiff and defendant dated January 24, 2013." It is undisputed that at the time the affidavit was executed, neither the plaintiff nor the defendant knew the exact amount owed by the defendant to the plaintiff under the January 24, 2013, letter agreement.

Approximately one year later, still unable to secure the defendant's cooperation in calculating the exact amount owed, the plaintiff unilaterally estimated the amount to be $207,474.92, filled in the previously executed affidavit of confession of judgment accordingly, and used that affidavit, as so modified, as the basis for obtaining a judgment by confession against the defendant in that amount, which was filed in the Nassau County Clerk's Office on April 8, 2014.

In September 2016, nonparty Elena M. Perez, a junior judgment creditor of the defendant, moved to vacate the judgment by confession on the ground that the affidavit of confession of judgment failed to comply with the strict requirements of CPLR 3218. In an affidavit filed in support of the motion, the defendant averred that the affidavit of confession of judgment was executed in blank, and the sum confessed was inserted at a later time without his knowledge or consent. The plaintiff opposed the motion. The Supreme Court denied the motion, and Perez appeals.

An affidavit of confession of judgment must "stat[e] the sum for which judgment may be entered" (CPLR 3218[a][1]), and, if the judgment to be confessed is for money due or to become due, the affidavit must also "stat[e] concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due" (CPLR 3218[a][2]).

Here, it is undisputed that the affidavit of confession of judgment, at the time it was executed by the defendant, failed to state the sum for which judgment could be entered. It is also undisputed that the sum was unilaterally filled in months later by the plaintiff, based on calculations that are neither fully explained nor ascertainable from the evidence contained in the record. Under the circumstances, the affidavit did not meet the requirements of CPLR 3218(a) (see Katlowitz v Halberstam, 284 AD2d 306, 307; see also County Natl. Bank v Vogt, 21 NY2d 800, 801-802; Rubashkin v Rubashkin, 98 AD3d 1018)."

A POST FORECLOSURE EVICTION

This case was issued on February 15. What I find interesting is that the homeowner made this motion on December 4, 2018 and the court, after denying the motion, set it down for trial for March 7. So only 90 days of delay were obtained - could this 90 day extra have been stipulated to by the parties instead of incurring the costs of the motion?

Deutsche Bank Nat'l Tr. Co. v. Cordova, LT-006410-18NA, (N.Y. Dist. Ct. 2019) :

"A corporation may act as agent for another corporation. See 3 AmJur 2d Agency §12. A corporation must necessarily act through agents within the scope of their authority. See Bank of New York v. UBS Warburg LLC, 4 AD3d 112, 774 NYS2d:

"[A] corporation must necessarily act by agents, and they, 'like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority'' ( Jacobus v. Jamestown Mantel Co., 149 App. Div. 356, 362, 134 N.Y.S. 418 affd. 211 NY 154, 105 N.E. 210 quoting Alexander v. Cauldwell, NY 480, 485)."

In HSBC Bank USA v. Jeffers, 30 Misc 3d 1209(A), 958 NYS2d 646 (Table), 2011 WL 91379 (Dist Ct, Nassau County 2011), this Court invalidated a 10 day notice to quit because there was no indication that Joyce Reynolds had signing authority. Missing from the 10 day notice to quit was an indication that Joyce Reynolds was employed by Wells Fargo and her position with same.

The case at bar is distinguishable because the 10 day notice executed by Jacqueline S. Michaelson clearly indicates that she was employed by Ocwen as a Contract Management Coordinator. As noted above a corporation necessarily acts through agents. Thus, the 10 day notice served in the case is valid.

Respondent claims that the Kentucky Fried Chicken applies. This rule is summarized in Residential Landlord-Tenant Law in New York §8:240 entitled "Notice to Quit—What It Must Contain" which states:

"In addition, the attorney signing the notice to quit must have documented authority to act for the landlord via the lease or the notice will be rendered defective. Washington Mutual Home Loans, Inc. v. Calderon, 9/25/2002 N.Y.L.J. 23, col 3 (Queens Co. Ct.) (quoting

Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 (2d Dep't 1985), order aff'd, 67 NY2d 792, 501 N.Y.S.2d 317, 492 N.E.2d 390 (1986): 'A notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in giving of such notice, is legally insufficient to terminate the tenancy.')."

In Deutsche Bank National Trust Company v. Mark Resnik, 24 Misc 2d 1238(A), (Table) 2009 WL 2527279 (Dist Ct, Nassau County 2009), this Court dismissed the 10 day notice executed by an attorney because of lack of proof of his authority to sign same for the principal. See also GMAC Mortgage Corp. v. Toureau, 15 Misc 3d 1139(A), 841 NYS2d 820 (Dist Ct, Nassau County 2007) holding that notice to quit executed by the Petitioner's attorney was insufficient because there was no evidence that the attorney had attached an authorization to authenticate his authority to act on behalf of the principal.

In the case at bar, it is undisputed that the Limited Power of Attorney was attached to the 10 day Notice to Quit. This Limited Power of Attorney authenticates Ocwen's authority to act. Thus, the Kentucky Fried Chicken rule is inapplicable to the factual circumstances at bar.

U.S. Bank v. Ballin, 158 AD3d 786, 72 NYS3d (2d Dept 2018) cited by Respondent as support for dismissal, is not applicable here. Suffice to say that Ballin dealt with the sufficiency of an affidavit for the consideration of business records on a summary judgment motion."

APPEALING A SUSPENSION FROM A PRIVATE COLLEGE

We have read about the scandals of getting into college - sometimes, there are serious allegations made when staying in college. This case law applies to private institutions.

Matter of Bondalapati v Columbia Univ. 2019 NY Slip Op 01720 Decided on March 12, 2019 Appellate Division, First Department:

"Respondents' disciplinary determination that petitioner forged an exam booklet was made in accordance with its written disciplinary policy and was rationally based and not arbitrary and capricious (see Kickertz v New York Univ., 110 AD3d 268, 272 [1st Dept 2013]). Petitioner had ample opportunity at the hearing to defend his conduct and explain his actions. Respondents' rejection of petitioner's explanation as not credible was not irrational. The denial of petitioner's internal appeal also was not irrational; respondents' written policy provided for limited grounds for appeal, none of which availed petitioner.

Petitioner's "due process" challenge is misplaced; a student at a private university is not afforded the "full panoply" of due process rights (Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, 361 [2d Dept 2001]; Matter of Mu Ch. of Delta Kappa Epsilon v Colgate Univ., 176 AD2d 11, 13 [3d Dept 1992]). Absent State involvement, the only issue for our review is whether respondents substantially complied with their own rules (Mu Ch., 176 AD2d at 13-14; see also Kickertz, 110 AD3d at 272; Cavanagh, 284 AD2d at 361). Petitioner does not dispute that the subject hearing was conducted in accordance with respondents' written disciplinary policy.

Petitioner's arguments about the sufficiency of the record before the hearing committee or on the internal appeal are without merit.

There is nothing shocking or disproportionate about the one-semester suspension imposed (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]; Matter of Quercia v New York Univ., 41 AD3d 295, 297 [1st Dept 2007]).

Petitioner's defamation claim was correctly dismissed because the subject statements were true (see Amato v New York City Dept. of Parks & Recreation, 110 AD3d 439, 440 [1st Dept 2013]), had not been published to any persons outside the university (seeLipsky v Gonzalez, 39 Misc 3d 1202[A], 2013 NY Slip Op 50439[U], *5 [Sup Ct, Bronx County 2013]), and were protected by a qualified common interest privilege (see Present v Avon Prods., 253 AD2d 183, 187 [1st Dept 1999], lv dismissed 93 NY2d 1032 [1999]; Lipsky, 2013 NY Slip Op 50439[U], *5). Petitioner's allegations of malice amount to little more than "mere surmise and conjecture" [*2]and are therefore insufficient to overcome this privilege (see Ashby v ALM Media, LLC, 110 AD3d 459, 459 [1st Dept 2013] [internal quotation marks omitted], lv denied 22 NY3d 860 [2014])."