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IN A FORECLOSURE PROCEEDING, IT IS AN AFFIRMATIVE DEFENSE THAT PLAINTIFF BANK FAILED TO COMPLY WITH 24 CFR 203.604 BY HOLDING A MEETING BEFORE ACCELERATING THE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s motion for summary judgment should not have been granted because plaintiff did not demonstrate compliance with 24 CFR 203.604 which requires a meeting before acceleration of the debt:

… [T]he plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant’s answer, and for an order of reference. In opposition, the defendant argued that the plaintiff was not entitled to accelerate the debt because it failed to comply with, inter alia, 24 CFR 203.604, a HUD regulation requiring a meeting prior to acceleration. * * *

… [T]he affirmative defense alleging a failure to comply with 24 CFR 203.604 was pleaded with the particularity required by CPLR 3015(a). Here, the plaintiff failed to establish that it complied with that regulation or that it was exempt from complying with it … . Accordingly, the court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . U.S. Bank N.A. v Ali, 2026 NY Slip Op 05823, Second Dept 10-7-26

Practice Point: Here the bank’s failure to demonstrate it complied with 24 CFR 203.604 by holding a meeting before accelerating the debt precluded summary judgment in this foreclosure action.​​

 

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THE SUPREME COURT’S RULING IN ERLINGER V US DOES NOT ALTER THE LANDSCAPE OF NEW YORK’S PREDICATE OFFENDER STATUTES; A JUDGE, AS OPPOSED TO A JURY, CAN MAKE THE CALCULATIONS NECESSARY TO DETERMINE THE BOUNDS OF THE 10-YEAR LOOKBACK PERIOD, INCLUDING THE TOLLING OF THE LOOKBACK BY INCARCERATION (SECOND DEPT).

The Second Department, reversing the resentence, in a full-fledged opinion by Justice Landicino, determined the US Supreme Court decision in Erlinger v US “does not alter the landscape of New York’s predicate offender statutes, the constitutionality of which is well-settled.” Therefore a judge, as opposed to a jury, can make the ministerial calculations required for any tolling of the 10-year lookback period for predicate offenses:

… [T]he tolling calculation under the subject predicate felony offender statutes does not involve an inquiry into the underlying facts that led to the predicate convictions. Rather, the court is required to determine the dates that a defendant entered and was discharged from a correctional facility upon serving a prior sentence … . These ministerial calculations do not implicate any factual determination as to the defendant’s actions during a prior crime of conviction and are akin to the “fact of prior conviction” … . To the extent that a sentencing court must divine the date of the commission of the present offense in order to determine the bounds of the 10-year lookback period, it is constitutionally permitted to use Shepard documents [judicial records, plea agreements, and colloquies between a judge and the defendant] to ascertain “the jurisdiction in which the defendant’s crime occurred and its date” … . Such an inquiry certainly does not impermissibly invite the sentencing court to “try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct” … . A jury is not required to resolve an inquiry that “does not relate to the commission of the offense itself” … . To protect the rights of a defendant during sentencing as a predicate felony offender, New York’s procedural rules provide for a hearing before the judge when the defendant “controverts an allegation” in the predicate felony statement (CPL 400.21). That is all that is required—the Constitution does not entitle a defendant to a jury determination on the issue of whether a predicate offense was committed within 10 years of the commission of the instant offense, including any calculation regarding the periods during which the defendant was incarcerated. People v Gardner, 2026 NY Slip Op 05809, Second Dept 10-7-26

Practice Point: In New York, a judge, as opposed to a jury, may make the lookback calculations associated with the application of the predicate offender sentencing statutes.

 

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DEFENDANT REAR DRIVER PROVIDED A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDING SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case raised a question of fact precluding summary judgment. Defendant alleged plaintiff abruptly changed lanes without signaling and came to a sudden stop in front of defendant’s vehicle:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include that a vehicle made a sudden lane change in front of a defendant’s vehicle, forcing the defendant to stop suddenly” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit wherein she averred that the rear of her stopped vehicle was struck by the front of the defendants’ vehicle … . However, in opposition, the defendants raised triable issues of fact as to the existence of a nonnegligent explanation for striking the rear of the plaintiff’s vehicle. According to the defendant driver’s affidavit, the accident occurred when the plaintiff’s vehicle abruptly changed lanes, without signaling, and immediately came to a sudden stop in front of the defendants’ vehicle … . Johnson v Payne, 2026 NY Slip Op 05775, Second Dept 10-7-26

Practice Point: Consult this decision for an example of a “nonnegligent” explanation for a rear-end collision which precluded summary judgment.​

 

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PLAINTIFF ATTORNEY’S DEFAMATION SUIT AGAINST A FORMER CLIENT WHO POSTED A NEGATIVE REVIEW WAS A “STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP);” PLAINTIFF DID NOT DEMONSTRATE THE SUIT HAD A SUBSTANTIAL BASIS IN LAW; THE POST WAS NONACTIONABLE OPINION (SECOND DEPT).

The Second Department, reversing Supreme Court, determines plaintiff-attorney’s defamation action against a former client who posted a negative review on the attorney’s website was a Strategic Lawsuit Against Public Participation (SLAPP). Plaintiff did not demonstrate the defamation action had a substantial basis in law because the posted review was nonactionable opinion:

… [T]he defendant satisfied her initial burden of establishing that this is an action involving public petition and participation, since it involves a claim based upon a communication in a public forum in connection with an issue of public interest [see Civil Rights Law 76-a]. * * *

The elements of a cause of action alleging defamation are (1) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (2) published without privilege or authorization to a third party, (3) amounting to fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se … . “Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action” … . Thus, an expression of pure opinion is not actionable, no matter how vituperative or unreasonable it may be … . Shapiro v Kushnick-Carr, 2026 NY Slip Op 05822, Second Dept 10-7-26

Practice Point: Here an attorney’s defamation action against a former client who posted a negative review was deemed a Strategic Lawsuit Against Public Participation (SLAPP) which was dismissed because it did not have a “substantial basis in law” (the post was nonactionable opinion).

 

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A PRECLUSION ORDER DOES NOT HAVE THE SAME EFFECT AS STRIKING THE ANSWER; THE DEFENDANT CAN STILL PRESENT LEGAL ARGUMENTS SUPPORTING A MOTION TO DISMISS; HERE THE DEFENDANT CITY AMBULANCE SERVICE WAS PERFORMING A GOVERNMENTAL FUNCTION WHEN DECEDENT WAS INJURED AND WAS ENTITLED TO IMMUNITY IN THE NEGLIGENCE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city was entitled to dismissal of the negligence action because the ambulance service was performing a governmental function and no special duty was owed by the city to the decedent. Here the city had failed to meet its discovery obligations and Supreme Court precluded the city from offering evidence. However the city was entitled to make legal arguments in an attorney affirmation to support its motion to dismiss the complaint:

… [A]n order precluding the submission of evidence, unlike the striking of an answer, does not relieve the plaintiff of his or her obligation to establish a prima facie case in the first instance … . The purpose of a preclusion order is to make the demanding party whole … . To further preclude the defendants from asserting defenses which require only general denials, despite the existence of a genuine factual dispute, deprives the defendants of their day in court and gives the plaintiff more relief than is warranted by the defendants’ failure to comply with their disclosure obligations … . Thus, contrary to the plaintiff’s contention, the order … precluding the defendants “from offering any evidence . . . and/or affidavits in support of or in opposition to any dispositive motion,” did not preclude the defendants from submitting legal arguments in an attorney affirmation or from referring to the parties’ pleadings.

When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party … . As relevant here, a municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiff where there is (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … . It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because the duty is an essential element of the negligence claim itself … . Davis v City of New York, 2026 NY Slip Op 05766, Second Dept 10-7-26

Practice Point: Here the city defendant failed to meet its discovery obligations and the court issued an order precluding the city from presenting evidence. However the city was not precluded from making legal arguments in support of its successful motion to dismiss.

Practice Point: The city was entitled to immunity because the city ambulance service was performing a governmental function and there was no special relationship between the city and the decedent.

 

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DEFENDANT PRESENTED SUFFICIENT EVIDENCE THAT HE WAS THE VICTIM OF ABUSE BY HIS GIRLFRIEND AT THE TIME OF THE OFFENSE TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS SENTENCE AND FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his sentence and for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) should not have been denied without a hearing. The court explained what a defendant must demonstrate to warrant a hearing:

The Domestic Violence Survivors Justice Act (DVSJA) “permits courts to sentence defendants to an alternative, less severe sentence if the defendant was a victim of domestic violence and convicted of certain eligible offenses” (… see Penal Law § 60.12). The DVSJA sets forth a three-prong test for entitlement to resentencing: “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant . . . ; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character[,] and condition of the defendant, . . . a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06, 70.71(2), or (3)] would be unduly harsh” … .

A defendant’s motion for resentencing under the DVSJA “must include at least two pieces of evidence corroborating the . . . claim,” and “[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” (CPL 440.47[2][c] …).

Here, the defendant’s evidence in support of his motion included affidavits of his cousin and friend, as well as hospital records. Collectively, this evidence corroborated the defendant’s allegations that he was a victim of domestic violence subjected to substantial abuse inflicted by his girlfriend R.W. at the time that he committed the subject offense … . People v M.W., 2026 NY Slip Op 05815, Second Dept 10-7-26

Practice Point: Consult this decision for an explanation of the evidence a defendant must present to warrant a hearing on a motion vacate a sentence and for resentencing pursuant to the DVSJA.​

 

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THE JURY SHOULD HAVE BEEN CHARGED WITH THE “DEFENSE OF A GOOD CLAIM OF RIGHT” IN THIS PETIT LARCENY CASE; DEFENDANT HAD REMOVED A MEMORIAL TO A MURDER VICTIM WHICH HAD BEEN SET UP ON THE SIDEWALK IN FRONT OF DEFENDANT’S MOTHER’S HOUSE (SECOND DEPT). ​

The Second Department, vacating defendant’s petit larceny conviction and ordering a new trial, over a dissent, determined the jury should have been charged with the “defense of good claim of right.” The defendant was tried for criminally negligent homicide and petit larceny. A mistrial was declared on the criminally negligent homicide charge and she was convicted of petit larceny. Defendant subsequently pled guilty to criminally negligent homicide and then appealed the petit larceny conviction. The petit larceny charge alleged defendant dismantled and took away parts of a memorial for a murder victim which had been set up on the sidewalk in front of defendant’s mother’s house by the murder victim’s mother. It was the murder victim’s mother who was killed when she was struck by a vehicle driven by the defendant (the subject of the criminally negligent homicide conviction):

… Supreme Court improperly denied the defendant’s request to charge the jury with the defense of a good faith claim of right. “In determining whether to instruct a jury on a claimed defense, the court must view the evidence adduced at trial in the light most favorable to the defendant” … . “The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it” … . “Where evidence exists upon which the jury could reasonably find that a particular defense applies, questions as to the credibility of the defendant’s testimony or inconsistences in the evidence presented do not disentitle the defendant to an instruction on the defense; those questions of fact are to be resolved by the jury” … . “If the evidence sufficiently supports a defense, a failure by the court to charge the jury constitutes reversible error” … .

… [W]e find that there was sufficient evidence to support the defendant’s good faith claim of right defense. * * * … [A]t trial, the People read the defendant’s grand jury testimony demonstrating that she had previously removed memorial items, including, inter alia, balloons and flowers without incident. Furthermore, at trial, a witness testified that he and the defendant, among others, had previously removed memorial items and no one ever asked where said items were and no one was ever arrested for removing same. This evidence reasonably supports the defendant’s claim of right defense. While there may have been evidence that contradicts the defendant’s claim of right defense, those are questions of fact the jury should have resolved … . People v Drago, 2026 NY Slip Op 05807, Second Dept 10-7-26

Practice Point: Consult this decision for a rare discussion of the “defense of a good claim of right” in the context of a petit larceny charge.

 

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IT WAS NOT CLEAR WHICH EMBRYOS, CREATED BY IN VITRO FERTILIZATION DURING THE PARTIES’ MARRIAGE, WERE ENCOMPASSED BY THE PARTIES’ STIPULATION THAT PLAINTIFF SHOULD HAVE EXCLUSIVE POSSESSION AND CONTROL OF THEM; THEREFORE, PLANTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED; THERE WAS A COMPREHENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s grant of summary judgment to plantiiff, over an extensive and comprehensive dissent, determined there were questions of about which frozen embryos were the subject of a stipulation in which the parties agreed plaintiff should have exclusive possession and control of the embryos created by in vitro fertilization (IVF). The parties were married at the time of the in vitro fertilization and subsequently divorced:

Here, the parties’ failure to establish from which IVF cycle the disputed embryos derived and to submit an agreement that provides for the cryopreservation and disposition of the embryos formed in the November 2021 IVF cycle precludes the award of judgment as a matter of law. Significantly, while the parties have relied upon the March 2023 agreement in fashioning their arguments, they did not stipulate that the March 2023 agreement controlled the dispute. Further, by its terms, the March 2023 agreement did not pertain to previously cryopreserved embryos, and the parties have stipulated that the embryos in dispute were formed in 2021. Thus, the evidence submitted on the defendant’s motion and the plaintiff’s cross-motion established that the March 2023 agreement did not control the disposition of the embryos in dispute. “On this record, we must decline the parties’ invitation to award judgment as a matter of law” … .Millender-Rubin v Rubin, 2026 NY Slip Op 05780, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the issues raised in a divorce proceeding by embryos created by in vitro fertilization during the marriage.

 

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PLAINTIFF DID NOT DEMONSTRATE THE PROCESS SERVER ACTED WITH “DUE DILIGENCE” BEFORE RESORTING TO “NAIL AND MAIL” SERVICE; THE COURT THEREFORE DID NOT ACQUIRE PERSONAL JURISDICTION OVER DEFENDANT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the process server acted with “due diligence” before resorting to “nail and mail” service:

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” … . “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” … . “To satisfy the ‘due diligence’ requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … . “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server resorted to service pursuant to CPLR 308(4) after only twice attempting personal service at the defendant’s residence during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work … . Moreover, there was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business … . Citibank, N.A. v Sagastume, 2026 NY Slip Op 05765, Second Dept 10-7-26

Practice Point: Consult this decision for a clear explanation of the criteria for the exercise of due diligence by a process server. Here the process server made no inquiries about the defendant’s whereabouts or place of business before resorting to “nail and mail.”

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION WHICH WAS NOT PRECEDED BY THE MIRANDA WARNINGS; DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) defendant’s waiver of appeal was invalid, and (2) defendant’s statements made in response to questioning not preceded by the Miranda warnings should have been suppressed:

… [D]efendant was a suspect in the burglary of the victim’s home after defendant’s fingerprint was found on a bedroom window. Investigators learned that defendant was scheduled to meet his parole officer. After defendant walked into his parole officer’s office, three police investigators entered the office to question him. At no point during the questioning of defendant did the officers give defendant his Miranda warnings or inform defendant that he was free to leave. Furthermore, the investigator who testified at the suppression hearing could not answer definitively whether defendant would have violated parole if he had refused to talk with the investigators and left the office. Defendant met with his parole officer only after the investigators concluded their interview. Under these circumstances, a reasonable person would have thought that they were not free to leave during questioning … . Moreover, the questions by the investigators were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . We conclude that defendant was in custody and was subjected to interrogation. People v Clegg, 2026 NY Slip Op 05663, Fourth Dept 10-2-26

Practice Point: Here defendant was questioned by investigators when he showed up for a meeting with his parole officer. The investigators did not tell defendant he was free to leave and did not give him the Miranda warnings. The questioning was accusatory and designed to incriminate. Therefore defendant’s motion to suppress his statements to the investigators should have been granted.