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A “CONCLUSORY AND UNSUBSTANTIATED” AFFIDAVIT DENYING DEFENDANT RESIDED AT THE ADDRESS WHERE SERVICE WAS MADE WAS NOT SUFFICIENT TO REBUT THE PRESUMPTION OF PROPER SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s affidavit denying she resided at the address where service was made was insufficient to rebut the presumption of proper service:

“‘Ordinarily, a process server’s affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. Where, however, there is a sworn, nonconclusory denial of service by a defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing'” … . “‘While bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit will defeat the presumption of proper service'” … .

Here, a process server’s affidavit constituted prima facie evidence of proper service pursuant to CPLR 308(2) upon the defendant … . Contrary to the defendant’s contention, her affidavit denying that she resided at the address where service allegedly was effectuated was conclusory and unsubstantiated and, therefore, was insufficient to rebut the presumption of proper service … . Cole v Shorter, 2026 NY Slip Op 05273, Second Dept 9-16-26

Practice Point: Here a “conclusory and unsubstantiated” affidavit denying that defendant resided at the address where service was made was deemed insufficient to rebut the presumption of proper service.

 

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DEFENDANTS’ PARTICIPATION IN FORECLOSURE SETTLEMENT CONFERENCES DID NOT CONSTITUTE AN “APPEARANCE” IN THE FORECLOSURE ACTION; THEREFORE DEFENDANTS COULD MOVE TO DISMISS THE ACTION AS ABANDONED WHERE PLAINTIFF FAILED TO TAKE A TIMELY DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action did not waive their right to seek dismissal pursuant to CPLR 3215(c) by participating in settlement conferences. Pursuant to CPLR 3215(c) a defendant who has not appeared in an action may move to dismiss the action as abandoned where plaintiff has not obtained a default judgment within six years:

… [T]he defendants did not waive their right to seek dismissal pursuant to CPLR 3215(c). A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking “any other steps which may be viewed as a formal or informal appearance” … . Here, the defendants did not serve an answer or participate in the action on the merits prior to cross-moving in July 2018, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned … . The defendants’ participation in settlement conferences pursuant to CPLR 3408 “did not demonstrate a clear intent to participate in the lawsuit on the merits” and thus, did not constitute a formal or informal appearance in the action … . Wilmington Sav. Fund Socy., FSB v Dresdner, 2026 NY Slip Op 05350, Second Dept 9-16-26

Practice Point: Participation in foreclosure settlement conferences does not constitute an “appearance” in a foreclosure action.

 

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HERE PLAINTIFF BANK FAILED TO PROVE THAT THE RPAPL 1304 NOTICE INCLUDED A LIST OF AT LEAST FIVE HOUSING COUNSELING AGENCIES IN THE REGION WHERE DEFENDANT LIVED; FAILURE TO DEMONSTRATE STRICT COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS REQUIRED DENIAL OF THE BANK’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to strictly comply with the content requirements of the RPAPL 1304 notice of foreclosure precluded summary judgment:

… [I]n support of its motion … for summary judgment on the complaint, the plaintiff submitted … an affidavit of Shae Smith, a vice president of loan documentation for the plaintiff, who averred therein that a 90-day notice was mailed to the defendant on April 14, 2010. Smith annexed to the affidavit a copy of the notice, which included a list of 17 “HUD Approved Housing Counseling Agencies.” However, the plaintiff failed to establish, prima facie, that, of the 17 agencies listed in the RPAPL 1304 notice to the defendant, at least 5 of those agencies served the region where the defendant resided … . Contrary to the plaintiff’s contention, the failure to provide a list of five housing counseling agencies as required by the statute is not a defect that may be disregarded pursuant to CPLR 2001 … .

Since the plaintiff failed to establish its strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint and for an order of reference without regard to the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Curtis, 2026 NY Slip Op 05348, Second Dept 9-16-26

Practice Point: Proof of strict compliance with the content-requirements of an RPAPL 1304 notice of foreclosure is a prerequisite for summary judgment.

 

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PLAINTIFF BANK’S FAILURE TO MOVE FOR A JUDGMENT OF FORECLOSURE AND SALE AS DIRECTED IN A 2017 ORDER WAS NOT SUFFICIENT GROUNDS FOR THE COURT, SUA SPONTE, TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank’s failure to move for a judgment of foreclosure and sale as directed by a 2017 order was not sufficient grounds for the court, sua sponte, to dismiss the complaint:

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . Here, the plaintiff’s failure to move for a judgment of foreclosure and sale as directed by the March 2017 order was not a sufficient ground upon which to, sua sponte, direct dismissal of the complaint … . Accordingly, the Supreme Court should have granted those branches of the plaintiff’s motion which were to vacate the August 2017 order and to restore the action to the active calendar. U.S. Bank, N.A. v Morrison, 2026 NY Slip Op 05346, Second Dept 9-16-26

Practice Point: Appellate courts don’t like sua sponte dismissals of complaints.

Similar issue and result in Wilmington Sav. Fund Socy., FSB v Hilario, 2026 NY Slip Op 05351, Second Dept 9-16-26

 

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LENDING A KNIFE TO AN ACQUAINTANCE, WITHOUT INQUIRING AS TO ITS USE, DID NOT CREATE A DUTY OWED TO THE PERSON STABBED BY THE ACQUAINTANCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the action against defendant store owners (F & S LLC) who gave defendant a knife which defendant used to stab the plaintiff should have been dismissed. The store owners did not owe a duty to plaintiff:

The plaintiff allegedly sustained personal injuries when the defendant William Volkes stabbed him with a knife. The incident allegedly occurred after the plaintiff attempted to retrieve his girlfriend’s cell phone from Volkes, with whom the plaintiff’s girlfriend was acquainted. After the plaintiff recovered the cell phone from Volkes, Volkes allegedly fled approximately one block to the defendant Frank and Sal, LLC (hereinafter F & S), a grocery market where he was a regular customer.

Once inside F & S, Volkes approached the deli section and allegedly asked an employee, who recognized Volkes, for a knife. Without inquiring into the purpose of Volkes’s request, but knowing him as a regular customer, the employee allegedly provided Volkes with a boning knife kept behind the deli counter. Volkes then allegedly exited F & S with the knife, returned to the plaintiff, and stabbed him. * * *

F & S established, prima facie, that it did not owe a duty to the plaintiff. F & S’s submissions established that it did not have sufficient authority and ability to control Volkes after he exited the premises and that it did not have a special relationship with the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted F & S’s motion for summary judgment dismissing the complaint insofar as asserted against it … . Torres v Frank & Sal, LLC, 2026 NY Slip Op 05340, Second Dept 9-16-26

Practice Point: Consult this decision for a rare discussion of a “duty” in the context of a negligence action. Here the defendants who gave an acquaintance a knife without inquiring as to its use did not owe a duty to the person stabbed by the acquaintance.​

 

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ALTHOUGH PLAINTIFF FELL DURING A SNOWSTORM, THE DEFENDANTS DID NOT DEMONSTRATE THE SLIPPERY CONDITION WAS NOT THE RESULT OF A PRIOR STORM; SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this ice and snow slip and fall case, determined defendants did demonstrate entitlement to summary judgment based on the storm in progress rule. Although defendants proved a snowstorm was in progress when plaintiff fell, they did not demonstrate the slippery condition was not the result of a prior storm:

“Under the storm in progress rule, ‘[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter'” … .

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. Although the evidence submitted by the defendants in support of their motion established that a snowstorm was in progress at the time of the plaintiff’s fall, it failed to eliminate triable issues of fact as to whether the slippery condition upon which the plaintiff fell was the result of a prior storm, rather than the storm that was then in progress, and whether the defendants had constructive notice of the pre-existing condition … . Batista v Allerton Ave Estates, LLC, 2026 NY Slip Op 05265, Second Dept 9-16-26

Practice Point: Plaintiff fell during a snowstorm and Supreme Court granted summary judgment to defendants under the storm in progress rule. The Second Department reversed because the defendants did not demonstrate the slippery condition was not the result of a prior storm.

 

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FALURE TO COMPLY WITH THE MODE OF SERVICE SPECIFIED IN AN ORDER TO SHOW CAUSE DEPRIVES THE COURT OF JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not comply with the mode of service specified in the order to show cause and did not give proper notice of the motion. Therefore, Supreme Court was without jurisdiction to hear it:

The Supreme Court erred in granting the plaintiff’s motion for a preliminary injunction and to restore the action to the active calendar. The mode of service provided for in an order to show cause is jurisdictional in nature and must be literally followed … . The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion … . Here, since the plaintiff failed to comply with the directives in the order to show cause, the court was without jurisdiction to entertain the motion … . Sosa v Gonzaga, 2026 NY Slip Op 05337, Second Dept 9-16-26

Practice Point: A party’s failure to comply with the mode of service specified in an order to show cause deprives the court of jurisdiction to hear the motion.

 

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A MOTION TO RENEW A SUMMARY JUDGMENT MOTION IS THE APPROPRIATE VEHICLE FOR ADDRESSING A CHANGE IN THE LAW; HERE THE FORECLOSURE ABUSE PREVENTION ACT, EFFECTIVE DECEMBER 30, 2022, WARRANTED VACATING THE MAY 15, 2019, ORDER, GRANTING THE MOTION TO RENEW AND DISMISSING THE COMPLAINT AS UNTIMELY (SECOND DEPT)

The Second Department, reversing Supreme Court, determined a motion to renew a prior summary judgment motion was the proper vehicle for asserting the Foreclosure Abuse Prevention Act (FAPA) which became effective December 30, 2022. The motion for summary judgment was denied May 15, 2019:

35 Pleasure moved for leave to renew its prior cross-motion for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage. In support of its motion, 35 Pleasure argued that the plaintiff’s commencement and voluntary discontinuance of the 2011 action rendered this action untimely under FAPA, which constituted a change in the law. The plaintiff opposed 35 Pleasure’s motion, contending, inter alia, that FAPA should not be given retroactive application, and cross-moved, among other things, to confirm the referee’s report and for a judgment of foreclosure and sale. *  *  *

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “Therefore, a motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law … . * * *

The six-year statute of limitations for this action began to run in December 2011, when the plaintiff commenced the 2011 action and elected in the complaint to call due the entire amount secured by the mortgage … . In light of the statutory amendments enacted by FAPA, the voluntary discontinuance of the 2011 action did not de-accelerate the mortgage debt, and, thus, the applicable limitations period expired in December 2017. This action, which was commenced in May 2018, therefore, was untimely … . Moreover, the plaintiff’s contentions challenging FAPA’s retroactive application and constitutionality are without merit … . Bank of N.Y. Mellon v Conforti, 2026 NY Slip Op 05262, Second Dept 9-16-26

Practice Point: A motion to renew is the appropriate vehicle for addressing a change in the law, here the Foreclosure Abuse Prevention Act (FAPA). The cross-motion for summary judgment was denied in 2019. The FAPA became effective December 20, 2022. The motion to renew the cross-motion for summary judgment was denied by Supreme Court in 2024, reversed in 2026.

Similar issues and results in Pryce v Nationstar Mtge., LLC, 2026 NY Slip Op 05331, Second Dept 9-16-26

 

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IN THIS REAR-END COLLISION CASE, DEFENDANT’S AFFIRMATION THAT PLAINTIFF STOPPED IN THE HIGHWAY LANE FOR NO APPARENT REASON RAISED A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined defendant’s affirmation that plaintiff stopped for no apparent reason raised and question of fact:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of the plaintiff driver’s affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see Vehicle and Traffic Law § 1129[a] …). However, an affirmation of the defendant driver, submitted in opposition to the motion, raised triable issues of fact as to whether the defendant driver had a nonnegligent explanation for the defendants’ vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault for causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Ramirez v Red Cloud Trucking, Inc., 2026 NY Slip Op 05332, Second Dept 9-16-26

Practice Point: In this rear-end collision case, defendant’s affirmation that plaintiff stopped in the highway lane for no apparent reason raised a question of fact whether there was a nonnegligent explanation for striking the back of plaintiff’s vehicle.

 

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THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff’s fall. The premises’s superintendent testified that he recorded the video on his cell phone from the building’s surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall. * * *

Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff’s claim … . However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.

Similar issues and results in Houghton v Piperaro, 2026 NY Slip Op 05290, Second Dept 9-16-26.

 

 

 

 

 

 

 

 

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