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THE COMPLAINT ALLEGING A VIOLATION OF JUDICIARY LAW 487 WAS DISMISSED; IT WAS ALLEGED AN ATTORNEY WAS AWARE HIS CLIENT’S SLIP AND FALL WAS STAGED; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, dismissing the complaint, over a two-justice dissent, determined the allegations of a Judiciary Law violation and fraud against an attorney were insufficient. It was alleged the attorney proceeded with a slip and fall action despite knowledge that the accident was staged:

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” [attorney] Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court …”.

From the dissent:

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat … that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Salas v 711-715 E 231st St., LLC, 2026 NY Slip Op 05064, First Dept 8-20-26

Practice Point: Here is a rare example of a Judiciary Law section 487 cause of action alleging an attorney proceeded with a slip and fall case knowing the accident was staged. Those allegations were deemed insufficient and the complaint was dismissed.

 

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PROPERTY OWNED BY A LIMITED LIABILITY COMPANY AND A TRUST IS NOT ENTITLED TO THE PROTECTIONS OF THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (RPAPL 993); THOSE ENTITIES ARE NOT “INDIVIDUALS” WITHIN THE MEANING OF THE ACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this partition action, in a full-fledged opinion by Justice Golla, determined a limited liability company and a trust are not “individuals” within the meaning of Real Property Actions and Proceedings Law (RPAPL) section 993:

In a case of first impression before this Court, we are asked to determine whether property owned wholly by a trust and a limited liability company may constitute “heirs property” pursuant to the Uniform Partition of Heirs Property Act (RPAPL 993). That question requires a determination as to whether a trust and a limited liability company are “individual[s]” within the meaning of RPAPL 993. … [W]e find that trusts and limited liability companies are not “individual[s]” under RPAPL 993. Property wholly owned by such entities, and not owned by individuals who acquired title from a relative, cannot be “heirs property” within the meaning of the statute. * * *

Here, the brothers, after owning the subject property themselves for more than half a century, put their interests in the subject property into these sophisticated legal entities. The owners’ status as sophisticated legal entities provides its own protections from predatory parties. In any event, here, there is no outside third party who is seeking to invade a family’s right to possess real property, further demonstrating that the owners are not entitled to the protections of RPAPL 993. Flouret v Sagland, LLC, 2026 NY Slip Op 05009, Second Dept 8-19-26

 

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PLAINTIFF WAS INJURED WHEN A BEAM WHICH WAS BEING HOISTED STARTED SWINGING WHEN PLAINTIFF WAS HOLDING ON TO IT; THE BEAM STRUCK A PILE OF BEAMS ON THE GROUND AND PLAINTIFF WAS “JERKED … FORWARD;” BECAUSE THE BEAM SHOULD HAVE BEEN SECURED AND THE INJURY WAS RELATED TO THE FORCE OF GRAVITY PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when a beam was being hoisted started swinging with plaintiff’s arm around it, and struck a pile beams, causing plaintiff to be “jerked … forward.”

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . “Liability is contingent upon ‘the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'” … . In cases involving falling objects, the applicability of the statute does not “depend upon whether the object has hit the worker” but rather “whether the harm flows directly from the application of the force of gravity to the object” … . “In falling object cases, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … .

Here, the plaintiff established, prima facie, [defendants’] liability under Labor Law § 240(1) by submitting, among other things, transcripts of the plaintiff’s deposition testimony and the crane operator’s deposition testimony, which established that the beam being hoisted at the time of the incident was an object that required securing for purposes of the undertaking, and the harm flowed “directly from the application of the force of gravity to the” beam … . Sougstad v OLP Hauppauge, LLC, 2026 NY Slip Op 05050, Second Dept 8-19-26

Practice Point: Here a beam which started swinging when it was hoisted was deemed a “falling object.” Although the “falling object” did not strike plaintiff, his injury was the result of the force of gravity upon the beam which should have been secured. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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DEFENDANT WAS DRIVING AT MORE THAN TWICE THE POSTED SPEED LIMIT IN A RESIDENTIAL NEIGHBORHOOD WHEN HE COLLIDED WITH ANOTHER CAR, KILLING THE DRIVER; USUALLY EXCESSIVE SPEED ALONE WILL NOT SUPPORT A CRIMINALLY NEGLIGENT HOMICIDE CHARGE; HERE, HOWEVER, THE EXCESSIVE SPEED IN COMBINATION WITH OTHER FACTORS, INCLUDING THE CHARACTER OF THE NEIGHBORHOOD, WAS SUFFICIENT TO SUPPORT THE CHARGE (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the indictment, over a dissent, determined the evidence presented to the grand jury was legally sufficient for criminally negligent homicide. The defendant was driving at twice the speed limit in a residential neighborhood when he collided with another vehicle at an intersection, killing the driver. Generally driving in excess of the speed limit, alone, will not support a criminally negligent homicide charge. However, here, the excessive speed, in combination with other factors, was deemed sufficient:

[T]he culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires ‘some additional affirmative act’ aside from ‘driving faster than the posted speed limit'” … , which transforms speeding into dangerous speeding, by engaging in some other “risk-creating” behavior such as disregarding traffic signals … . However, there is no per se rule that speeding alone is insufficient … . There are circumstances where excessive speed “absent proof of any other contributing factors” is sufficient … . The extent of the violation of the posted speed limit and the surrounding circumstances must be considered … .

“[I]n order to sustain a conviction for criminally negligent homicide in a case in which the principal item of evidence consists of proof of the defendant’s use of excessive speed, [the law does not require that] the prosecution must always prove some other traffic law violation unrelated to the defendant’s rate of speed. While it may be accurate to say that an infraction of the posted speed limit does not ipso facto establish criminal negligence, it would not be accurate to say that a trier of fact may never conclude that in light of the time, the place, the weather conditions, and in light of any number of other factors which might be established at the trial, the defendant’s use of excessive speed was criminally negligent” … .

Here, … [t]he evidence, if accepted as true, demonstrated that the defendant disregarded road conditions, i.e., the fact that he was traveling in a residential neighborhood with a playground on the corner of the intersection, when he decided to drive his vehicle through the intersection at well above twice the posted speed limit … . The evidence further indicated that he was showing off to his friend how the vehicle “drives,” which, considering the fact that he accelerated the vehicle’s speed while allegedly doing so, indicated that he was showing off how the vehicle operated at a high speed. The evidence further indicated that he ignored a traffic control sign directing motorists to exercise additional caution … . People v Lee, 2026 NY Slip Op 05038, Second Dept 8-19-26

Practice Point: Here in the fatal-vehicle-accident case, defendant’s excessive speed, in combination with the nature of the neighborhood and other factors, supported the criminally negligent homicide charge.

 

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THE JUDGE DISMISSED FATHER’S NEW YORK CUSTODY PETITION BECAUSE MOTHER HAD PREVIOUSLY COMMENCED A CUSTODY PROCEEDING IN FLORIDA; BECAUSE THE JUDGE DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT, THE MATTER WAS REMITTED (SECOND DEPT).

The Second Department, reversed Family Court and remitted the matter. The Family Court judge dismissed the father’s New York custody petition on the ground mother had previously commenced a custody proceeding in Florida where she and the child resided. The judge, however, did not follow the procedures mandated by the Uniform Child Custody Jurisdiction and Enforcement Act which must precede a ruling that one of the two courts is the most appropriate forum:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law article 5-A), a New York court “may not exercise its jurisdiction” in a child custody proceeding “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [Domestic Relations Law article 5-A], unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1] …). “If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2] …).

A court, acting pursuant to these provisions, must make a record of its communications with a court of another state on substantive matters, must promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75-i[4] …). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2] …). Matter of Adames v Digangi, 2026 NY Slip Op 05022, Second Dept 8-19-26

Practice Point: Consult this decision for an explanation of the statutory procedure mandated when a judge must decide which of two forums is appropriate for a custody proceeding. Here mother commenced a custody proceeding in Florida and father subsequently commenced a custody proceeding in New York.

 

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IN AN ACTION ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS, TO MAKE OUT A PRIMA FACIE CASE SUCH THAT THE FOUR-YEAR LOOK-BACK DOES NOT APPLY, PLAINTIFF NEED NOT DEMONSTRATE EACH ELEMENT OF COMMON-LAW FRAUD; SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF A FRAUDULENT SCHEME ARE WHAT MUST BE DEMONSTRATED (FIRST DEPT).

The First Department, reversing Supreme Court upon remittitur from the Court of Appeals, over a two-justice dissent, remitted the matter to Supreme Court for application of the recently clarified standard for the prima facie demonstration of fraud in an action alleging a fraudulent scheme to deregulate apartments. The issue is whether plaintiffs presented sufficient evidence of fraud to overcome the four-year look-back provision in the former Rent Stabilization Law:

… [T]he Court [of Appeals] refined the common-law standard applied to allegations of a fraudulent scheme to deregulate apartments subject to rent stabilization on a motion to dismiss under CPLR 3211 … . More specifically, [the Court of Appeals] “made clear that, for the fraud exception [to the four-year lookback period in the former Rent Stabilization Law § 26-516 (a)] to apply, a plaintiff need not demonstrate each element of common-law fraud and instead must put forth sufficient indicia of fraud or a colorable claim of a fraudulent scheme” … .

Parallel to the Court of Appeals’ development of the common law applicable to fraudulent deregulation claims, the legislature addressed the fraudulent deregulation standard by statute … . Under the legislature’s statutory amendments, the relevant inquiry is whether the landlord ” ‘knowingly engaged in [a] fraudulent scheme [to deregulate] after a consideration of the totality of the circumstances’ ” … To date, the Court of Appeals has not had occasion to “address to what extent this legislation differs from [the] common-law rule, and, if there is any difference, the impact or applicability of that legislation” … . Aras v B-U Realty Corp., 2026 NY Slip Op 04983, First Dept 8-13-26

​Practice Point; Consult this decision for insight into what a plaintiff must allege or demonstrate to survive a motion to dismiss or to warrant summary judgment in an action alleging a fraudulent scheme to deregulate apartments and seeking the “fraud exception” to the statutory four-year look-back for damages.

 

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THE TOWN PLACED A $24,000 LIEN ON PLAINTIFF’S PROPERTY FOR REPAIR WORK DONE BY THE TOWN BEFORE THE PROPERTY WAS TRANSFERRED TO PLAINTIFF; PLAINTIFF BROUGHT A PROCEDURAL-DUE-PROCESS ACTION AGAINST THE TOWN (42 USC 1983); THE ACTION FAILED BECAUSE OF THE AVAILABILITY OF A CPLR ARTICLE 78 PROCEEDING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town was entitled to summary judgment dismissing plaintiff’s 42 USC 1983 action alleging a violation of procedural due process. Plaintiff, after purchasing the property, was assessed over $24,000 for repairs to the property paid for by the town and necessitated by the prior owner’s failure to maintain the property. The procedural due process claim failed because plaintiff had the option of bringing an Article 78 proceeding:

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment” … . “‘Due process is flexible and calls for such procedural protections as the particular situation demands'” … . In determining what due process requires in a specific context, courts consider “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” … .

Here, although the plaintiff’s property interest was affected by the special assessment and lien, the risk of erroneous deprivation was remedied by the availability of a proceeding pursuant to CPLR article 78 … . Accordingly, the Town demonstrated, prima facie, that it did not deprive the plaintiff of due process … . First Sovereign Equity Group, Inc. v Town of Smithtown, 2026 NY Slip Op 04928, Second Dept 8-12-26

Practice Point: Here the risk of erroneous deprivation of plaintiff’s property by the town was remedied by the availability of a CPLR article 78 proceeding. Therefore the criteria for a viable procedural-due-process action against the town were not met.

 

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APPARENTLY THE MORTGAGOR WAS DECEASED AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED RENDERING THE FORECLOSURE ACTION A NULLITY; SUPREME COURT DID NOT HAVE JURISDICTION, SO AMENDING THE CAPTION TO ADD THE EXECUTOR DID NOT EFFECTUATE JURISDICTION OVER THE ESTATE; ECHO BAY PURCHASED THE PROPERTY FROM THE MORTGAGOR’S SUCCESSORS FOUR YEARS LATER; ECHO BAY HAD THE RIGHT TO INTERVENE, MOVE TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, AND MOVE TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, granting the motion to intervene and dismissing the foreclosure complaint, apparently determined the mortgagor was deceased at the time the foreclosure action was brought rendering the action a nullity. Therefore Supreme Court did not have jurisdiction to amend the caption to add the mortgagor’s executor. For years later, Echo Bay purchased the property from the mortgagor’s successors and properly moved to intervene, to vacate the judgment of foreclosure and sale and to dismiss the complaint:

“‘A party may not commence a legal action or proceeding against a dead person'” … , and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . * * *

… [T]he fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention … , and that branch of the plaintiff’s prior motion which was for leave to amend the caption to substitute the executor of [mortgagor’s] estate as a defendant in this action did not effectuate jurisdiction over her estate … . * * *

… Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against [the mortgagor], the sole borrower and property owner as alleged in the complaint … . The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1] …). “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” … . Federal Natl. Mtge. Assn. v Jackson, 2026 NY Slip Op 04927, Second Dept 8-12-26

Practice Point: If the mortgagor is deceased when the foreclosure action is commenced, the action is a nullity and the judgment of foreclosure and sale is void. A subsequent purchaser of the property can successfully move to intervene, vacate the judgment and dismiss the foreclosure complaint.

 

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SELF-SERVING STATEMENTS OF AN INTERESTED PARTY (THE PLAINTIFF IN THIS SLIP AND FALL CASE) WHICH REFERRED TO MATTERS EXCLUSIVELY WITHIN THAT PARTY’S KNOWLEDGE CREATED AN ISSUE OF CREDIBILITY PRECLUDING SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined inconsistencies in plaintiff’s deposition testimony as well as the fact he was the only witness to the incident raised credibility issues which precluded summary judgment:

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability. His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred … . The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which further raised credibility issues, since “[o]n a motion for summary judgment . . . , self-serving statements of an interested party which refer to matters exclusively within that party’s knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” … . Espinal v 1760-1770, LLC, 2026 NY Slip Op 04926, Second Dept 8-12-26

Practice Point: On a summary judgment motion, statements by an interested party which refer to matters exclusively within that party’s knowledge can create a credibility issue which precludes summary judgment.

 

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