Recent decisions out of the Appellate Division, Second Department

January 2, 2025 Robert Abruzzese, Courthouse Editor

The home of the Appellate Division, Second Department, on Monroe Place in Brooklyn Heights. Eagle file photo by Rob Abruzzese

Proper service and standing upheld in Brooklyn foreclosure case

The Appellate Division, Second Department, affirmed a Kings County Supreme Court decision rejecting Moshe Ashkenazi’s motion to dismiss a complaint by Bayview Loan Servicing, LLC. The court found the service to be properly executed and that the plaintiff had standing to proceed.

Ashkenazi had argued that the summons and complaint were not properly served under CPLR 308(2) and that the plaintiff lacked standing to foreclose. CPLR 308(2) permits service by delivering the summons and complaint to a person of suitable age and discretion at the defendant’s residence, followed by mailing copies to the same address. The process server’s affidavits are considered prima facie evidence of proper service. To challenge this presumption, the defendant must provide specific facts contradicting the affidavits. The court noted that Ashkenazi’s failure to provide such facts meant no evidentiary hearing was required.

For standing, the court cited that a plaintiff in a foreclosure action must be the holder or assignee of the note at the time the case begins. This can be shown through either a written assignment or physical possession of the note. The court determined that JPMorgan Chase Bank, which acquired the loan from Washington Mutual in 2008, demonstrated standing by attaching a copy of the note, endorsed in blank, to the foreclosure complaint. The court also ruled that the post-commencement transfer of the note to Bayview Loan Servicing did not impact JPMorgan’s standing.

The Appellate Division concluded that Bayview Loan Servicing met both legal standards. The service complied with CPLR 308(2), and the note’s attachment to the complaint established JPMorgan Chase’s standing at the time of the action’s commencement. The court cleared the way for the foreclosure action to proceed, awarding costs to Bayview Loan Servicing.

~ Bayview Loan Servicing, LLC v. Ashkenazi ~

Rear-end collision presumption applied in Brooklyn negligence case

The Appellate Division, Second Department, reversed a Kings County Supreme Court ruling in a personal injury case stemming from a rear-end collision. The appellate court denied summary judgment for the defendants and granted the plaintiff’s motion for summary judgment on liability.

The case involved Fabiha F. Chowdhury, a passenger in a vehicle operated by defendant Majharul Chowdhury, which was rear-ended by a vehicle owned by Mohamed Elshaer and driven by Gaber Elnaggar. The plaintiff filed suit, alleging negligence and serious injury under New York’s Insurance Law § 5102(d).

The Kings County Supreme Court had dismissed the plaintiff’s claims, determining she failed to show a serious injury under the law, and denied her motion on liability as moot. On appeal, the court held that the defendants’ motions for dismissal were improperly granted. While the plaintiff did not dispute that the defendants initially met their burden of proof, the court found she raised a triable issue of fact regarding the lumbar spine injuries allegedly caused by the accident.

The appellate court also ruled that liability in rear-end collisions is presumptively assigned to the rear driver, requiring evidence of a nonnegligent explanation to rebut the presumption. The defendants’ claim that the lead vehicle stopped suddenly, as noted in a police report, was insufficient to overcome this presumption.

~ Chowdhury v. Elshaer ~

Foreclosure sale extension and caption amendment upheld in Brooklyn case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision allowing First Franklin Financial Corporation to amend the caption in a foreclosure case and extend the time to conduct a foreclosure sale.

The case involves a 2007 foreclosure action against multiple defendants, including Nicole Bridges, the original borrower, and Evis Stephens, a subsequent property owner. In 2021, First Franklin sought to amend the caption to include Deutsche Bank National Trust Company, the successor in interest to Stephens, and to extend the time for the foreclosure sale. The Kings County Supreme Court granted the motion, which Deutsche Bank appealed.

The appellate court ruled that Deutsche Bank, as the successor in interest to Stephens, was precluded from raising any nonjurisdictional defenses because Stephens had defaulted in the action. The court noted that Deutsche Bank did not move to vacate the foreclosure judgment, and its opposition to the motion was fully considered by the lower court, meaning it suffered no prejudice from the procedural amendments.

The Second Department affirmed the lower court’s order, allowing the foreclosure process to proceed with costs awarded to First Franklin Financial Corporation.

~ First Franklin Financial Corporation v. Bridges ~

Strict liability for dog bites clarified in housing authority case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing a personal injury lawsuit brought by Yefim Gershik against the New York City Housing Authority (NYCHA). Gershik claimed he was bitten by a dog while delivering food in a building owned by NYCHA in March 2018.

The legal issue centered on strict liability for injuries caused by dog bites. To hold a landlord liable, a plaintiff must prove that the landlord knew a dog was on the premises, knew or should have known about its vicious tendencies, and had the authority to remove or control the dog.

The court found that NYCHA demonstrated it had no notice of the dog’s presence or its alleged violent tendencies. Gershik’s deposition, in which he claimed to have complained to a NYCHA employee about the dog, failed to establish liability. The court noted that Gershik could not identify the employee or provide evidence that the employee was a manager or agent of NYCHA.

The appellate court affirmed the lower court’s ruling, granting summary judgment in favor of NYCHA and dismissing Gershik’s complaint, with costs awarded to the defendant.

~ Gershik v. NYCHA ~

Foreclosure action time-barred, mortgage ordered discharged

The Appellate Division, Second Department, reversed a Kings County Supreme Court decision, ruling that a foreclosure action initiated by HSBC Bank USA, National Association, against Brooklyn homeowner Nussarat Mohammed was time-barred. The appellate court ordered the cancellation and discharge of the mortgage and remitted the matter for a hearing to determine Mohammed’s attorneys’ fees.

The case stemmed from a 2007 foreclosure action in which HSBC accelerated the mortgage debt, triggering a six-year statute of limitations under CPLR 213(4). HSBC later discontinued the 2007 and subsequent 2010 foreclosure actions but initiated a new foreclosure action in August 2018. Mohammed moved for summary judgment, arguing the action was untimely, and sought to cancel the mortgage under RPAPL 1501(4) and recover attorneys’ fees under Real Property Law § 282. The Supreme Court denied her cross-motion, prompting her appeal.

The appellate court found that the six-year statute of limitations began running when HSBC accelerated the debt in 2007. The 2018 action was commenced more than six years later, and HSBC’s attempt to “de-accelerate” the debt in 2016 occurred after the limitations period had already expired. The court also rejected HSBC’s reliance on a 2012 loan modification agreement, ruling it did not toll or revive the statute of limitations under General Obligations Law § 17-105(1).

The appellate court granted Mohammed’s motion for summary judgment, dismissing the foreclosure complaint as time-barred and ordering the cancellation of the mortgage.

~ HSBC Bank USA, National Association v. Mohammed ~

Substitution of estate administrator ordered in legal malpractice case

The Appellate Division, Second Department, reversed a Kings County Supreme Court decision that denied a motion to substitute the estate administrator for a deceased plaintiff, Charles Roe, in a class action alleging legal malpractice and fraud against Leeds, Morelli & Brown, P.C., and Bear Stearns. The appellate court ordered the substitution and reinstated related claims.

The case dates back to 2005 when Cheryl Lee and Roe, who both retained Leeds, Morelli & Brown for employment discrimination claims, alleged that the firm entered into a secret agreement with Bear Stearns to settle cases for limited payouts while protecting the company from publicity and liability. Following Roe’s death, the Kings County Supreme Court denied a motion to substitute his estate administrator and dismissed several claims, prompting this appeal.

The appellate court held that the trial court lacked jurisdiction to consider motions filed after Roe’s death without a proper substitution under CPLR 1015. Additionally, it found no prejudice to the defendants due to the delay in substitution, determining the claims, including legal malpractice, had potential merit and were not time-barred under the continuous representation doctrine.

The ruling reinstates the malpractice and fraud claims and directs the substitution of the administrator for Roe’s estate, allowing the case to proceed.

~ Lee v. Leeds, Morelli & Brown, P.C. ~

Defendants prevail as court affirms no serious injury in accident case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing a personal injury lawsuit brought by Elizabeth Ramos against Mirza S. Jahar and others. The court ruled that Ramos failed to demonstrate she sustained a “serious injury” as defined by New York Insurance Law § 5102(d) in a motor vehicle accident.

Under Insurance Law § 5102(d), “serious injury” includes specific conditions such as death, fractures, or significant limitations of use of a body function or system. The statute requires that a medically determined impairment must prevent the injured party from performing daily activities for at least 90 of the 180 days immediately following the accident.

The defendants moved for summary judgment and argued that Ramos’ injuries to her right knee, right shoulder, and lumbar spine were degenerative and unrelated to the accident. Supported by a radiologist’s findings, they successfully demonstrated that Ramos’ injuries did not meet the statutory definition of “serious injury.”

The appellate court agreed with the lower court’s determination, stating that Ramos did not provide sufficient evidence to raise a triable issue of fact. The court noted that Ramos’ experts failed to address the defendants’ findings that her injuries were degenerative rather than traumatic. The decision grants summary judgment in favor of the defendants and dismisses Ramos’ complaint.

~ Ramos v. Jahar ~

Probable cause and warrant execution scrutinized in apartment search case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing claims of false arrest, unlawful search, and failure to intervene against the City of New York and NYPD Officer Andrew Kamna. The case stemmed from a 2016 search of Maria Valdez’s Brooklyn apartment, conducted under a no-knock warrant issued based on information from a confidential informant.

Valdez argued that the search became unconstitutional when Kamna realized mid-search that the suspect no longer lived at the address. The court, however, ruled that the officers acted lawfully under the warrant and determined that Kamna was protected by qualified immunity, shielding him from liability for decisions made in good faith during the search.

New York law generally presumes searches conducted under judicially authorized warrants to be reasonable. The court highlighted that probable cause, while not requiring absolute certainty, supports the execution of a warrant unless clearly invalidated. The ruling reaffirmed the lower court’s decision granting summary judgment to the defendants.

~ Valdez v. City of New York ~

Serious injury standard in car accident case leads to reversal

The Appellate Division, Second Department, reversed two Kings County Supreme Court decisions regarding whether plaintiffs met the “serious injury” standard under Insurance Law § 5102(d) following a car accident.

The case involved a collision between a vehicle driven by Antonio Valdez and one operated by Gilberto Herrera-Echavarria of Classic Hauling, LLC. The plaintiffs alleged spinal and knee injuries and significant life limitations. The Supreme Court had dismissed the claims, finding the injuries insufficient under the statute.

The appellate court disagreed, ruling that the defendants failed to establish a lack of serious injury or causation. The plaintiffs presented medical evidence and explanations for gaps in treatment, raising material factual issues. The court also rejected the defense’s reliance on the law of the case doctrine, allowing the claims to proceed.

~ Valdez v. Classic Hauling, LLC ~