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HERE THE FORECLOSURE SALE TOOK PLACE ABOUT AN HOUR BEFORE DEFENDANTS CLOSED WITH ANOTHER BUYER; THE FORECLOSURE SALE EXTINGUISHED DEFENDANTS’ RIGHT TO REDEEM THE MORTGAGE; THE SUCCESSFUL BIDDER AT THE FORECLOSURE SALE THEREFORE PREVAILED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure sale to the successful bidder, Pekich, took place before the purported sale of the same property by defendants to Ore on the same day. Therefore defendants’ right to redeem the property was extinguished by the foreclosure sale:

“‘A mortgagor or other owner of the equity of redemption of a property subject to a judgment of foreclosure and sale may redeem the mortgage at any time prior to the foreclosure sale'” … . However, “[t]he right to redeem is extinguished as a matter of law upon the foreclosure sale, whether or not the deed has been delivered, and once the right to redeem is lost, it cannot be revived, even by court order” … .

Here, the record demonstrates that the foreclosure sale of the property at which Pekich was the successful bidder concluded at 3:15 p.m. on June 21, 2024, and that the payoff sum was wired to the plaintiff during Ore and the [defendants’] closing more than one hour later, at 4:23 p.m. on June 21, 2024. Under these circumstances, Pekich became the equitable owner of the property upon the completion of the foreclosure sale, and any right to redeem the mortgage had already been extinguished by the time Ore and the [defendants] purported to close on the property … . JPMorgan Chase Bank, N.A. v Gezlev, 2026 NY Slip Op 05387, Second Dept 9-23-26

Practice Point: A foreclosure sale to a successful bidder extinguishes a mortgagor’s right to redeem the mortgage. Here the foreclosure sale took place one hour before defendants attempted to redeem the mortgage with proceeds from another purported sale of the property. The successful bidder prevailed.

 

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PLAINTIFF STRUCK HER HEAD ON A WINDOW AIR CONDITIONING UNIT WHICH PROTRUDED FROM A SCHOOL BUILDING INTO A COURTYARD; THE PROTRUDING AIR CONDITIONER WAS DEEMED “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS,” PRECLUDING LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the window air conditioner on which plaintiff struck her head was “open and obvious and not inherently dangerous:”

… [T]he plaintiff … allegedly was injured when she struck her head on an air conditioning unit protruding from a window in a courtyard of a school. * * *

A property owner has a duty to maintain its premises in a reasonably safe condition … . “In a premises liability case, a defendant property owner . . . who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . However, a property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident … . Hoefler v Shoreham-Wading Riv. Cent. Sch. Dist., 2026 NY Slip Op 05384, Second Dept 9-23-26

Practice Point: Consult this decision for an example of a condition deemed “open and obvious and not inherently dangerous” as a matter of law.

 

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IN THIS FORECLOSURE ACTION DEFENDANT’S MOTION TO VACATE THE NOTE OF ISSUE SHOULD HAVE BEEN DENIED; THE MOTION WAS UNTIMELY AND DID NOT DEMONSTRATE ANY UNANTICIPATED CIRCUMSTANCES SINCE THE FILING OF THE NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the note of issue in this foreclosure action should have been dismissed as untimely:

… [S]upreme Court also should have denied the defendant’s … motion pursuant to CPLR 5015(a)(3) to vacate the note of issue filed by the plaintiff. A motion to vacate a note of issue is governed by 22 NYCRR 202.21, pursuant to which any party to an action may, within 20 days of service of the note of issue and certificate of readiness, move to vacate the note of issue upon an affidavit demonstrating that the case is not ready for trial … . Where a party’s motion to vacate a note of issue is timely, “the party is ‘required only to demonstrate why the case [is] not ready for trial'” … . However, where the motion is not timely, the party seeking relief must meet the “‘more difficult standard'” of 22 NYCRR 202.21(d) which “‘requires the movant to demonstrate unusual or unanticipated circumstances and substantial prejudice'” … .

Here, the defendant’s motion to vacate the note of issue was untimely as it was made … more than 20 days after the note of issue was filed … . Moreover, the defendant failed to demonstrate the existence of unusual or unanticipated circumstances since the filing of the note of issue warranting its vacatur … . Federal Natl. Mtge. Assn. v Cassis, 2026 NY Slip Op 05381, Second Dept 9-23-26

Practice Point: Where a motion to vacate the note of issue is made more than 20 days after the note of issue was filed it must demonstrate “the existence of unusual or unanticipated circumstances since the filing of the note of issue warranting its vacatur.” If the motion to vacate is timely made it must demonstrate only that the case is not ready for trial.

 

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THE CHARGES STEMMED FROM AN ARMED CONFRONTATION WITH POLICE OFFICERS; A PROSPECTIVE JUROR INDICATED SHE “WOULD PROBABLY RELATE TO THE POLICE OFFICERS;” THE DENIAL OF THE DEFENSE CHALLENGE TO THE JUROR REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT). ​

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defense challenge to a prospective juror should have been granted:

The trial evidence established that officers with the Hudson Police Department responded to a residence regarding a possible domestic incident. Upon their arrival, the officers announced themselves and knocked on the door for approximately five minutes before the door was eventually opened and they were permitted entry. Two officers entered the single-bedroom apartment while two others remained outside. One of the officers inside the apartment then came upon the bedroom where defendant was wielding a knife, which he had raised above his head in the direction of that officer. The officer, who was in uniform and visible to defendant, drew his service weapon and directed defendant to drop the knife multiple times before defendant ultimately did so. Defendant was then placed into custody with extreme difficulty. This chain of events was echoed by the three other officers present during the underlying events. * * *

After acknowledging close relationships with several individuals in law enforcement, the prospective juror expressed that, although she “would like to think [she] can be fair,” she “would probably relate to the [law enforcement] victims.” While “words like ‘think’ or ‘try’ are not talismanic words that automatically make a statement equivocal” … , the prospective juror continued that she “hope[d] that [she] could still be fair.” Altogether, these equivocal statements raised a clear question as to her ability to remain impartial and, therefore, could only be remedied by an unequivocal statement of impartiality … . However, when pressed by defense counsel as to whether she could be fair, the prospective juror failed to directly address the issue and, in fact, seemed to further express her own bias. County Court did not then attempt to rehabilitate the prospective juror … and, as a result, her prior statements of partiality were not remedied … . Under these circumstances we find disqualification to have been required. Thus, because defendant exhausted his peremptory challenges before jury selection was complete, a new trial is necessary … . People v Edmunds, 2026 NY Slip Op 05442, Third Dept 9-23-26

Practice Point: Consult this decision for insight into the inquiry required when a prospective juror indicates a bias in favor of law enforcement.

 

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THE FEDERAL “ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT (EFAA)” PRECLUDED THE ENFORCEMENT OF A MANDATORY ARBITRATION CLAUSE IN A CONTRACT BETWEEN PLAINTIFF COLLEGE STUDENT AND HER SORORITY; THEREFORE PLAINTIFF COULD SUE THE SORORITY IN NEGLIGENCE FOR COMPELLING HER TO ATTEND A MIXER WHERE SHE WAS SEXUALLY ASSAULTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in a matter of first impression, in a full-fledged opinion by Justice Landicino, determined that the federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) precluded arbitration in a negligence suit by a college student against her sorority. Plaintiff-student alleged she was compelled by her sorority to attend a mixer with a fraternity where she was sexually assaulted. The contract between plaintiff and the sorority included a mandatory arbitration clause:

This case presents an issue of first impression for this Court: whether the …. EFAA … can serve to prevent arbitration, notwithstanding an arbitration clause in a contract between the parties, of an action sounding in negligence against a party that did not commit the alleged sexual assault. We hold that it can, under the circumstances presented here.

… According to the complaint, the plaintiff attended SUNY Cortland and was a member of the [defendant] sorority … .. … [A] fraternity chapter, Pi Kappa Phi … , allegedly held a mixer event off campus … . According to the complaint, the plaintiff, as a member of the sorority, was “expected and obligated by [the] sorority to attend the mandatory mixer event to be hosted by the fraternity.” The fraternity purportedly provided alcohol and other intoxicating substances to the attendees at the mixer event, which caused the plaintiff to become impaired. Allegedly, while attending the mixer event, the plaintiff met a member of the fraternity (hereinafter the alleged abuser) who took the plaintiff to a nearby premises where he sexually assaulted her. * * *

The issue raised on this appeal is whether the plaintiff may invoke the EFAA to prevent arbitration of her claims where the sorority did not commit the alleged sexual assault. The plaintiff’s cause of action in this matter does not sound in sexual assault. Rather, the cause of action sounds in negligence based on the alleged failure of the sorority to supervise and protect its members at a function that the members were required to attend, which exposed the plaintiff to the sexual assault. The question is whether the EFAA can bar arbitration of a complaint sounding in negligence only. * * *

… [A]lthough the sorority contends that the plaintiff’s cause of action sounds in negligence as opposed to sexual assault, that distinction is immaterial here. The negligence cause of action is “related” to the sexual assault dispute alleged in the complaint, which is all that is required under the EFAA … . While the sorority is a third party that was not directly involved in the sexual assault, the negligence claim is nonetheless “related” to the sexual assault dispute inasmuch as the plaintiff contends that the sorority placed her in a dangerous circumstance that led to the sexual assault. There is a clear logical nexus between the cause of action alleged in the complaint and the alleged sexual assault, which places this matter squarely within the ambit of the EFAA. C.N. v Sigma Delta Tau Socy., 2026 NY Slip Op 05405, Second Dept 9-23-26

Practice Point: Here plaintiff student sued her sorority in negligence for compelling her to attend a mixer with a fraternity where she was sexually assaulted. Plaintiff’s contract with the sorority included a mandatory arbitration clause. The federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) applied to these facts to preclude enforcement of the arbitration clause.

 

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PETITIONER’S “PREOCCUPATION WITH HIS INJURIES, TREATMENT AND RECOVERY” WAS DEEMED A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner fell onto the tracks at a subway station and was struck by a train. Evidence petitioner was “preoccupied with his injuries, treatment and recovery” constituted a reasonable excuse for the delay in filing the notice:

… [P]etitioner demonstrated that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident based on the respondents’ prompt and thorough investigation of the accident, which included interviews of the train operator and analysis regarding the speed of the train and when the train’s emergency brake was engaged … . Moreover, since the respondents acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the respondents would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the respondents failed to come forward with particularized evidence showing that the late notice substantially prejudiced their ability to defend the claim on the merits … .

Further, contrary to the respondents’ contention, the petitioner demonstrated a reasonable excuse for his delay in serving the notice of claim. “A petitioner may be able to establish a reasonable excuse for not timely serving a notice of claim based on an injury or medical condition, but only ‘through admissible medical evidence that he [or she] was incapacitated to such an extent that he [or she] could not have complied with the statutory requirement'” … . However, “even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries . . . than with retaining counsel to pursue a legal claim, but only when such an allegation is supported by medical evidence” … . Here, the petitioner sufficiently established a reasonable excuse for his delay in serving a notice of claim based on his preoccupation with his injuries, treatment, and recovery, including the required amputation of his lower right leg, and his extended stay at a rehabilitation center as he relearned how to walk … . Matter of Nash v New York City Tr. Auth., 2026 NY Slip Op 05399, Second Dept 9-23-26

Practice Point: Here petitioner was struck by a subway train and his treatment included amputation of his lower right leg. Petitioner’s “preoccupation with his injuries, treatment and recovery” was deemed a reasonable excuse for failing to timely file a notice of claim.​

 

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WHEN THE COUNTY FAILED TO RESPOND TO PETITIONER’S APPEAL OF THE DENIAL OF A FOIL REQUEST WITHIN TEN DAYS, THE COUNTY WAS DEEMED TO HAVE “CONSTRUCTIVELY DENIED” THE APPEAL; AT THAT POINT PETITIONER HAD EXHAUSTED ADMINISTRATIVE REMEDIES AND WAS FREE TO COMMENCE A CPLR ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the county’s failure to respond to a FOIL request within five days and the county’ s failure to respond to a FOIL administrative appeal within ten days constitute constructive denials of the FOIL request. Therefore, after the county’s failure to timely respond to the administrative appeal, the petitioner had exhausted administrative remedies and was free to bring a CPLR article 78 proceeding:​

“Any administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . Within 10 business days of such an appeal, the agency must “‘fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought'” (… Public Officers Law § 89[4][a]; see 21 NYCRR 1401.5[c]; 1401.7[f]). “[A] FOIL request is deemed denied if there is no response to the request within five business days” … . This is known as a “constructive denial” …, and an agency’s failure to respond to an administrative appeal within the 10-day limit also constitutes a constructive denial (see 21 NYCRR 1401.7[f]). As there is no dispute that the County did not respond within the 10-day limit, its failure to respond acted as a constructive denial of the petitioner’s appeal, and therefore, the respondents’ argument that the petitioner failed to exhaust the available administrative remedies before commencing a CPLR article 78 proceeding is without merit … . Matter of Landa v Rockland County, 2026 NY Slip Op 05398, Second Dept 9-23-26

Practice Point: The failure of a government agency to respond to a FOIL request within five days and to a FOIL administrative appeal within ten days are deemed “constructive denials.”​

 

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PLAINTIFF WAS IN A TRENCH AND WAS STRUCK BY CONCRETE WHICH SLID INTO THE TRENCH; THE MAJORITY CONCLUDED CONFLICTING ACCOUNTS OF THE ACCIDENT AND PLAINTIFF’S FAILURE TO USE AVAILABLE LUMBER TO BRACE THE SIDES OF THE TRENCH RAISED QUESTIONS OF FACT; THE DISSENT ARGUED THAT NO MATTER HOW THE ACCIDENT HAPPENED LABOR LAW 240(1) LIABILITY WAS DEMONSTRATED (FALLING OBJECT; ABSENT SAFETY DEVICE) (FIRST DEPT).

The First Department, reversing Supreme Court, over a comprehensive dissent, determined questions of fact precluded summary judgment on plaintiff’s Labor Law 240(1) cause of action. Apparently plaintiff was in a trench when he was struck by a piece of cement. Plaintiff alleged the concrete slid off a backhoe. An eyewitness stated the concrete was dislodged during excavation. The majority concluded there was also a question of fact about whether plaintiff was the sole proximate cause of the accident because lumber to brace the sides of the trench were available and plaintiff was instructed to use it. The dissenter argued that, no matter how the accident happened, plaintiff was injured by a falling object for which Labor Law 240(1) liability attached:

The conflicting accounts raise a credibility determination which is the province of the factfinder … . …

… [T]here are also issues of fact as to whether plaintiff was the sole proximate cause of the accident because he knew or should have known to use an available safety device — namely, lumber braces to brace the sides of the trench … .

From the dissent:

The conflicting accounts of the accident from plaintiff and defendant do not present a triable issue of fact because both versions include a violation of Labor Law § 240(1) as a proximate cause of plaintiff’s injuries … . Plaintiff’s account, for its part, is a basic statutory violation resulting from failure to properly secure a hoisted object … .

Likewise, [the eyewitness’] version involves a statutory violation as a proximate cause. … Labor Law § 240(1) may apply to a falling object due to a trench collapse caused by absent or improper bracing … . Veliu v Verizon N.Y. Inc., 2026 NY Slip Op 05374, First Dept 9-22-26

 

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THIS OPINION DEMONSTRATES HOW COURTS DEAL WITH INTERPRETING THE LANGUAGE OF A CONTRACT WHERE DICTIONARY DEFINITIONS OF A KEY WORD, HERE THE WORD “COMMIT,” SUPPORT THE OPPOSING POSITIONS OF THE PARTIES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a detailed dissent, affirmed the lower court’s interpretation of the contract language and the related denial of plaintiff’s demand for prevailing-party attorney’s fees. The opinion turned on the definition of “commit” and is too detailed to fairly summarize here. The opinion should be consulted for insight into the interpretation of contract language where dictionary definitions support the opposing positions of the parties. Aurelius Capital Master Ltd. v Hertz Intl. Ltd., 2026 NY Slip Op 05369, First Dept 9-22-26

 

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THERE IS NO RESTRICTION ON THE NUMBER OF TIMES A PLAINTIFF MAY TAKE ADVANTANGE OF THE SIX-MONTH EXTENSION TO FILE A NEW ACTION (CPLR 205(A)) WHERE THE COMPLAINT IS DISSMISSED BECAUSE PLAINTIFF HAS NOT YET OBTAINED LETTERS OF ADMINISTRATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the dismissal of a complaint on behalf of a decedent because plaintiff has not yet obtained letters of administration is not on the merits. Therefore a plaintiff can take advantage of the six-month extension to file another action (CPLR 205(a)) every time the complaint is dismissed on that ground:​

CPLR 205(a) provides that, “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.” “Dismissal of an action for lack of capacity to sue is not a dismissal on the merits and, therefore, does not preclude the applicability of the six-month savings period under CPLR 205(a)” … . Where a complaint is dismissed pursuant to CPLR 3211(a)(3) for lack of capacity to sue because the plaintiff has not yet obtained letters to administer the decedent’s estate, “there is no restriction on the number of times that a plaintiff may qualify for a six-month statutory grace period” under CPLR 205(a) … .

Here, the Supreme Court directed dismissal of the complaint pursuant to CPLR 3211(a)(3) for lack of capacity to sue because the plaintiff had not yet obtained letters to administer the decedent’s estate. Under these circumstances, there is no restriction on the number of times that the plaintiff may qualify for a six-month statutory grace period under CPLR 205(a) … .  Greene v Five Towns Premier Rehabilitation & Nursing Ctr., 2026 NY Slip Op 05286, Second Dept 9-16-26

Practice Point: Where a complaint is dismissed because plaintiff has not yet obtained letters of administration there is no restriction on the number of times plaintiff can take advantage of the six-month extension to file a new action pursuant to CPLR 205(a).​