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STRICT COMPLIANCE WITH THE NOTICE OF FORECLOSURE PROVISIONS IN RPAPL 1304 IS REQUIRED; HERE THE BANK FAILED TO SHOW THAT IT SENT RPAPL 1304 NOTICES ADDRESSED INDIVIDUALLY TO DEFENDANTS (SECOND DEPT).

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

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304(2) states that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice” … .

… [A] “‘defense based on noncompliance with RPAPL 1304 may be raised at any time'” prior to the entry of a judgment of foreclosure and sale … . … [T]he plaintiff failed to establish its strict compliance with the service requirements of RPAPL 1304. … [T]he plaintiff failed to show that it sent RPAPL 1304 notices addressed individually to each of those defendants as required by the statute … . HSBC Bank USA, N.A. v Stein, 2025 NY Slip Op 04638, Second Dept 8-13-25

Practice Point: Strict compliance with the notice of foreclosure provisions of RPAPL 1304 is required. The notices must be sent to defendants individually.

 

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PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary snowstorm:”

Under the storm in progress rule, a property owner will not be held liable for accidents caused by accumulation of snow unless “an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . “[T]he question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case” … .

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting an affidavit of a meteorologist, with attached certified climatological data, which demonstrated that at the time of the plaintiff’s accident, less than five hours had passed since the end of an extraordinary snowstorm … . In opposition, the plaintiff failed to raise a triable issue of fact … . Harris v New York City Tr. Auth., 2025 NY Slip Op 04635, Second Dept 8-13-25

Practice Point: The storm in progress rule applies for a period of time after the precipitation stops. Here the rule was applied to a slip and fall which occurred five hours after an “extraordinary snowstorm.”

 

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BUSINESS RECORDS SUBMITTED BY A PERSON WHO DOES NOT ALLEGE PERSONAL KNOWLEDGE OF THE PARTY’S RECORD-KEEPING PRACTICES AND PROCEDURES CANNOT BE RELIED UPON BY THE REFEREE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because relied-upon business records were not incorporated into an affidavit from someone with personal knowledge of the plaintiff’s record-keeping practices and procedures:

… [T]he supplemental business records were not identified by [the affiant] “or otherwise incorporated into[ ] her affidavit. Rather, those records were attached as an exhibit to [a letter] of the plaintiff’s attorney, and the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures” … . For this reason, the referee’s findings were not substantially supported by the record … . Citimortgage, Inc. v Rooney, 2025 NY Slip Op 04624, Second Dept 8-13-25

Practice Point: Here the referee’s report relied on business records submitted attached to a letter from plaintiff’s attorney. Because the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures, the records should not have been considered and the referee’s report was not substantially supported by the record.

 

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DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this ladder-fall case. Plaintiff testified the unsecured ladder moved and he fell, which made out a prima facie case under Labor Law 240(1). Defendants attempted to raise a question of fact by submitting a statement plaintiff allegedly made to his foreman in Spanish, but defendants presented no evidence that the translation was accurate:

… [P]laintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony, which established that the unsecured ladder moved, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact. The documents submitted by the defendants in opposition to the plaintiff’s motion, which relied on a statement the plaintiff allegedly made to his foreman in Spanish, were insufficient to raise a triable issue of fact. The defendants did not submit any deposition testimony or affidavit from the foreman, and they failed to show that the translation of the statement was provided by a competent, objective interpreter whose translation was accurate … . Batis v 85 Jay St. (Brooklyn), LLC, 2025 NY Slip Op 04619, Second Dept 8-13-25

Practice Point: Before a court will consider a statement translated from another language, the party offering the statement must show the translation was provided by a competent, objective interpreter whose translation was accurate.

 

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FAILURE TO COMPLY WITH THE SERVICE-OF-PROCESS REQUIREMENTS IN CPLR 308 AND 311 ARE JURISDICTIONAL DEFECTS, NOT “TECHNICAL” DEFECTS WHICH CAN BE OVERLOOKED PURSUANT TO CPLR 2001 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the incarcerated plaintiff’s failure to comply with the service of process requirements in CPLR 308(2) and 311 were jurisdictional defects which could not be overlooked by the judge pursuant to CPLR 2001. CPLR 2001, which allows a court to cure a “technical” defect in effecting service, presupposes the court has acquired jurisdiction:

“‘The court’s ability to apply CPLR 2001 . . . presupposes that the court has acquired jurisdiction'” … . Thus, “CPLR 2001 may be used to cure only a ‘technical infirmity'” in effecting service … . “‘In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'” … . “Defendant’s actual receipt of the summons and complaint is not dispositive of the efficacy of service” … .

Here, notwithstanding the plaintiff’s status as an incarcerated pro se litigant, the plaintiff’s failure to comply with the personal delivery requirements of CPLR 308(2) and CPLR 311, or to effect the requisite mailings within the required time period under CPLR 308(2) are jurisdictional defects that the Supreme Court may not overlook pursuant to CPLR 2001 … . Baptiste v County of Suffolk, 2025 NY Slip Op 04618, Second Dept 8-13-25

Practice Point: CPLR 2001, which allows the cure of “technical” defects in the service of process, does not apply to “jurisdictional” defects such as failing to comply with the requirements in CPLR 308 and 311.

 

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PLAINTIFFS REQUESTED GENERAL LIABILITY INSURANCE WHICH WAS PROCURED BY THE BROKER; THE BROKER WAS NOT UNDER A DUTY TO ADVISE, GUIDE OR DIRECT PLAINTIFFS TO OBTAIN ADDITIONAL COVERAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the defendant insurance broker breached its duty to procure additional insurance for the plaintiffs. Defendant proved plaintiffs requested general liability insurance which was procured:

“As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage” … .

… [P]laintiffs did not make a specific request for a particular kind of insurance coverage that the defendant failed to procure … . The plaintiffs’ CEO and president testified … [the] plaintiffs needed general liability insurance. The defendant’s vice president of operations testified that the plaintiffs’ application was for general liability insurance, which the record reflects is the kind of insurance the defendant procured for the plaintiffs. In opposition, the plaintiffs failed to raise a triable issue of fact  Spa Castle, Inc. v Choice Agency Corp., 2025 NY Slip Op 04676, Second Dept 8-13-25

Practice Point: An insurance broker’s duty to a client does not extend beyond procuring the coverage requested by the client. There is no duty to advise the client to obtain additional coverage.

 

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COUNTY COURT DECIDED TO ANONYMIZE POTENTIAL AND EMPANELED JURORS IN THIS MURDER TRIAL; THE MAJORITY CONCLUDED THE ANONYMIZED JURY DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR AND DID NOT WARRANT INTERVENTION IN THE INTEREST OF JUSTICE; THE TWO-JUSTICE DISSENT ARGUED THE EFFECT OF THE ANONYMIZED JURY ON THE PRESUMPTION OF INNOCENCE WARRANTED REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court’s “unsupported decision to anonymize potential and empaneled jurors” was not a mode of proceedings error and did not require reversal in the interest of justice:

From the dissent:

Considering the significance of the jury’s determination that defendant acted with the intent to kill rather than some lesser objective, the potential effect of empaneling an anonymous jury on defendant’s presumption of innocence warrants corrective action. We need look no further than the Court of Appeals’ characterization of the use of an anonymous jury, even with the proper factual predicate, as an “extraordinary procedure” (People v Flores, 32 NY3d at 1088). The logical import from the Court’s statement is that an error in the process is equally extraordinary and warrants corrective action. Moreover, although defendant was aware of the names of the jurors, that does not resolve the effect that employing an anonymous jury has on the presumption of innocence. Although not expressly stated, the majority’s decision to forgo corrective action in this case appears to be founded on the conclusion that the error itself is not significant; in other words, a harmless error analysis without explicit reference, which, as previously noted, this Court has already rejected when addressing the improper use of an anonymous jury … . All told, regardless of preservation, the principle remains that an appellate court is not in a position to “adjudge the causal effect that the error in empaneling an anonymous jury might have had on the jury’s verdict” … . For these reasons, we believe corrective action is warranted in this case and would reverse and remit for a new trial. People v Goberdhan, 2025 NY Slip Op 04601, Third Dept 8-7-25

Practice Point: Consult this decision for a discussion of the propriety of anonymizing the jury and the effect an anonymized jury may have on the presumption of innocence.

Same “anonymized jurors” issue and result (over a two-justice dissent) in People v Reinfurt, 2025 NY Slip Op 04603, Third Dept 8-7-25

 

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A PLAINTIFF’S STIPULATED SETTLEMENT WITH THE INSURED ACCOMPANIED BY A COVENANT NOT TO EXECUTE THE JUDGMENT AND AN ASSIGNMENT OF THE INSURED’S CLAIMS AGAINST THE INSURER IS NOT A “RELEASE;” THE INSURER STILL HAS A DUTY TO INDEMNIFY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant insurer had a duty to indemnify plaintiffs under a policy issued to a bar sued by plaintiffs for using plaintiffs’ images without their consent. Plaintiffs had entered a settlement agreement with the bar which included a consent judgment in which plaintiffs agreed to forgo execution of the judgment in consideration for the bar’s assignment of its rights against the insurer. The insurer agued the settlement agreement constituted a release, extinguishing its obligation to indemnify. The First Department, in a matter of first impression, held the agreement was not a release and the insurer still had a duty to indemnify:

In New York, the legal ramifications of a general release in the context of an insured/insurer relationship are clear; a general release in favor of an insured abolishes any present or future duty of indemnification on the part of the insurer … . However, it appears that no New York precedent exists on the issue presented here: whether the insurer’s liability is maintained where, in settlement, a consent judgment is entered that incorporates an assignment of the insured’s rights against the insurer coupled with a covenant not to execute on the judgment. * * *

We conclude … that a stipulated judgment … accompanied by a covenant not to execute and an assignment of claims can be enforced against an insurer. Geiger v Hudson Excess Ins. Co., 2025 NY Slip Op 04609, First Dept 8-7-25

Practice Point: Here the plaintiffs settled with the insured in return for the assignment of the insured’s claims against the insurer. In a matter of first impression, the First Department held that the covenant not to execute the judgment against the insured (included in the settlement agreement) was not a “release” which extinguished the insurer’s duty to indemnify. The duty to indemnify remains.

 

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THIS BREACH OF CONTRACT ACTION WAS BASED UPON A LEASE ENTERED BY A LIMITED LIABILITY COMPANY THE ASSETS OF WHICH WERE PURCHASED BY THE TWO DEFENDANT LIMITED LIABILTY COMPANIES; THE MAJORITY CONCLUDED THE COMPLAINT STATED A CAUSE OF ACTION UNDER THE THEORY THAT THE DEFENDANTS CONSTITUTED A “MERE CONTINUATION” OF THE ORIGINAL LESSEE’S BUSINESS; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the breach of contract (commercial lease) cause of action against defendant limited liability companies which had purchased the assets of the original lessee (another limited liability company) should not have been dismissed. The majority concluded the complaint stated a cause of action under the theory that defendants constituted a “mere continuation” of the original lessee. The dissent argued the “mere continuation” theory does not apply where, as here, there are two purchasers of the original lessee’s assets:

… [W]e find that plaintiff has sufficiently stated a cause of action for breach of contract against [defendants] based on the “mere continuation” exception to the rule against successor liability. “Although no one factor is dispositive,” courts determining whether a successor corporation is a “mere continuation” of its predecessor have considered whether: (1) all or substantially all assets are transferred to the successor corporation; (2) the predecessor corporation has been effectively extinguished following the transaction; (3) the successor has assumed an identical or nearly identical name; (4) the successor has retained one or more of the same corporate officers, directors, and/or employees; and (5) the successor has continued the same business … . * * *

Neither the motion court nor defendants cite to any authority prohibiting application of mere continuation successor liability where more than one company has acquired the assets of the predecessor. We disagree with the dissent to the extent that it asserts that Schumacher (59 NY2d 239) stands for the proposition that the existence of more than one successor corporation necessarily bars application of the mere continuation doctrine. In Schumacher, there was only one successor … . Accordingly, it does not address the situation in the facts pleaded by plaintiff in this case. Avamer 57 Fee LLC v Hunter Boot USA LLC, 2025 NY Slip Op 04607, First Dept 8-7-25

Practice Point: The purchasers of a business which constitute a “mere continuation” of the seller’s business can be liable under a contract originally entered by the seller.

 

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HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Even though plaintiff had failed to file a note of issue by a court-ordered deadline, no CPLR 3216 ninety-day notice had been served and there had been no order directing dismissal of the complaint. Therefore plaintiff need not provide an excuse for the delay. Restoration to the calendar was automatic and there was no specific time frame for the motion to restore:

“When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27” … . “Under these circumstances, a motion to restore the action to the calendar should be granted without considering whether the plaintiff had a reasonable excuse for the delay or . . . engaged in dilatory conduct” … . Further, “CPLR 3404 d[oes] not apply . . . to . . . pre-note of issue” actions … . “[S]ince this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame” … . Tarasiuk v Levoritz, 2025 NY Slip Op 04592, Second Dept 8-6-25

Practice Point: Although plaintiff did not file a note of issue by the court-ordered deadline, because there had been no ninety-day demand and no court order dismissing the complaint, restoration to the active calendar was automatic.

 

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