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UNDER THE FORECLOSURE ABUSE PREVENTION ACT (FAPA), A DEFENDANT CAN RENEW A SUMMARY JUDGMENT MOTION AFTER A JUDGMENT OF FORECLOSURE AND AFTER THE TIME FOR APPEAL HAS EXPIRED AS LONG AS THE SALE HAS NOT YET BEEN CONDUCTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for renewal of its summary judgment motion in this foreclosure proceeding should have been granted. The motion was based upon the retroactive application of the Foreclosure Abuse Prevention Act (FAPA). Renewal should be granted after a judgment of foreclosure and after the time for appeal has expired if the sale has not yet been conducted:

Generally, “a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired” … . However, in Article 13 LLC v Ponce De Leon Fed Bank, the Court of Appeals clarified the application of the Foreclosure Abuse Prevention Act (FAPA), finding that it applies retroactively and to all foreclosure actions in which “a final foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date” … .

A judgment of foreclosure and sale is deemed enforced when the sale is concluded … . Therefore, the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted … . Based on a change in the law with the enactment of the FAPA, [defendant’s] motion for leave to renew pursuant to CPLR 2221(e)(2), was timely … . 21st Mtge. Corp. v Jin Hua Lin, 2026 NY Slip Op 01116, First Dept 2-26-26

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) allows a defendant to renew a motion for summary judgment after a judgment of foreclosure and after the time for appeal has expired if the foreclosure sale has not yet been conducted.

 

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THE TRANSGENDER PETITIONER’S REQUEST TO SEAL THE RECORDS OF THE NAME-CHANGE PROCEEDINGS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court’s denial of petitioner’s request to seal the court records, determined petitioner’s transgender status justified the sealing of the records of the name-change proceedings:

… “[W]hether to grant or deny a sealing request under Civil Rights Law § 64-a depends solely upon the potential for harm to the applicant arising from public access to a court record of the applicant’s name change proceeding” and “a court abuses its discretion by relying upon real or theoretical ‘public interest concerns’ to deny a Civil Rights Law § 64-a sealing request” … . Said directly, “[t]o decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against” … .

Petitioner in this case affirmed his transgender status and indicated that he was seeking to change his name to one that reflects his male gender identity in conformance with the name he uses in his personal and professional life. Petitioner also expressed fear that exposure to the records from this proceeding would effectively expose his transgender status and expose him to increased risk for hate crimes, harassment and other discrimination. Those circumstances warrant entitlement to have the record of his name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Abigail X., 2026 NY Slip Op 01104, Third Dept 2-26-26

 

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HERE THE “PRIMARY JURISDICTION DOCTRINE” DID NOT APPLY TO REQUIRE A STAY TO ALLOW THE PUBLIC SERVICE COMMISSION (PSC) TO DETERMINE WHETHER “STRAY VOLTAGE” WAS CAUSING INJURY TO PLAINTIFF’S CATTLE AND, IF SO, HOW BEST TO MITIGATE OR REMEDIATE; THE PSC HAS NO SPECIAL EXPERTISE REGARDING THE EFFECTS OF STRAY VOLTAGE ON CATTLE; THE ISSUES ARE BEST HANDLED BY A COURT, DESPITE THE COMPETING EXPERT OPINIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the “primary jurisdiction doctrine” did not require that the civil action be stayed to allow the Public Service Commission (PSC) to determine whether “stray voltage” was harming plaintiff’s cattle and, if so, how the problem can be mitigated or remediated. Plaintiff, a cattle farmer, sued defendant electric company (which services the farm) alleging that “stray voltage” has caused “behavioral changes [in the cattle], decreased milk production, fertility issues and other health problems.” The Third Department held that the Public Service Commission was not better suited to deal with the issues presented by “stray voltage” than the court:

Assuming, without deciding, that the regulatory scheme is an appropriate means to address some of the issues underlying these tort claims … , compliance with regulatory standards is not dispositive as to due care … . Upon a stay and referral, the PSC [Public Service Commission] would have only the authority to determine whether defendant is presently operating in compliance with its administrative standards, which set forth minimum, generalized safety requirements. As PSC asserts and as evidenced by the opinions and reports of plaintiffs’ experts, the duty of care with respect to stray voltage on dairy farms may be quite different from this regulatory floor. The PSC also admittedly has no expertise in the impact of stray voltage on cattle and has advised that it would be necessary to seek out the opinion(s) of its own experts if tasked with evaluating whether any stray voltage here is “harmful” or merits mitigation beyond the aforementioned standards. * * *

As plaintiffs argue, the claims at issue, which do not arise from the PSC’s rules, regulations or policies, are common-law tort claims, requiring determinations as to familiar concepts such as duty and causation, and are inherently judicial … . As with other complicated areas of tort, the necessary expertise is initially supplied by the parties’ experts. To the extent that the divergence between those experts on scientific principles may necessitate additional guidance, Supreme Court possesses the authority to utilize a referee or court-appointed neutral expert to aid in the review of complex litigation where appropriate (see CPLR 4001, 4212 …). In sum, although the PSC’s opinion as to the existence, origin or degree of stray voltage may be informative, resolution of plaintiffs’ claims do not first require resolution of issues placed within the agency’s special competence. Frasier v Niagara Mohawk Power Corp., 2026 NY Slip Op 01110, Third Dept 2-26-26

Practice Point: Consult this opinion for insight into when the “primary jurisdiction doctrine” should be applied to stay a court proceeding to allow an agency to investigate and offer guidance on the underlying issues. Here the Third Department held that the Public Service Commission did not have expertise on the issues underlying the trial, so the “primary jurisdiction doctrine” did not require that the civil action be stayed pending a PSC investigation.

 

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PETITIONER, A PROTECTION AND ADVOCACY AGENCY FOR DISABLED PERSONS, WAS NOT ENTITLED TO UNFETTERED ACCESS TO RECORDS OF ABUSE KEPT BY RESPONDENT JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE PRIVACY INTERESTS OF THE DISABLED PERSONS REQUIRE THAT PERSONS FOR WHOM THE RECORDS ARE SOUGHT BE SPECFICALLY IDENTIFIED ALLOWING RESPONDENT TO DETERMINE WHETHER ANY OF THE GROUNDS FOR RELEASE OF THE RECORDS DESCRIBED IN THE FEDERAL DEVELOPMENTAL DISABILITIES ASSISTANCE AND BILL OF RIGHTS ACT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined that the petitioner, a protection and advocacy (P & A) agency representing persons with developmental disabilities, did not have the right to unfettered access to records of abuse investigations by the respondent Justice Center for the Protection of People with Special Needs. Before access to such records can be granted, the respondent must be provided with the name of the allegedly abused person. At that point the respondent can determine whether any of the grounds for release of the records is applicable:

Our inquiry here distills to whether petitioner is entitled — in executing its investigatory, oversight function as a P & A entity — to unqualified access to records pertaining to the abuse and/or neglect of persons with developmental disabilities within subject facilities, or whether respondents properly conditioned such access upon satisfaction of the disclosure requirements delineated under the DD Act [Developmental Disabilities Assistance and Bill of Rights Act (see 42 USC § 15001 et seq.]. * * *

Satisfaction of the disclosure requirements under the DD Act thus necessitate the identification of the subject individual to either secure necessary consent or determine if circumstances otherwise permit disclosure. The result is “a carefully calibrated system that t[akes] into consideration both the privacy interests of developmentally disabled persons and the need for P & A organizations to examine records in order to pursue their statutory functions” … . Here, although petitioner’s request for records advised that it had received complaints regarding a particular facility subject to respondents’ oversight, it did not identify the subject(s) of the complaints or provide respondents any information that would allow respondents to determine whether one of the four circumstances enumerated in the DD Act applied. Nothing in the federal statutory language supports petitioner’s contention that it is permitted unqualified access to records in furtherance of its investigatory role. To the contrary, petitioner’s access is expressly conditioned upon satisfaction of one of the four above-detailed scenarios, which necessitate the identification of the individual(s) whose records are sought … . Matter of Disability Rights N.Y. v State Justice Ctr. for the Protection of People with Special Needs, 2026 NY Slip Op 01111, Third Dept 2-26-26

 

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ALTHOUGH THERE WAS PROOF THE 90-DAY NOTICES WERE MAILED TO THE PRO SE PLAINTIFFS, THERE WAS ALSO PROOF THE MAIL WAS NOT DELIVERED AND WAS RETURNED; WITHOUT PROOF PLAINTIFFS ACTUALLY RECEIVED THE 90-DAY NOTICES, THE COURT SHOULD NOT HAVE DISMISSED THE ACTION FOR WANT OF PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the action for want of prosecution should not have been granted. Although there was proof defendants (the Cohens) mailed the 90-day notices to the pro se plaintiffs, there was no proof the notices were received (the mailings were returned):

In August 2023, more than a year after the expiration of the stay, the Cohens moved … pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. In support of the motion, the Cohens submitted evidence that in August 2022 they mailed 90-day demands pursuant to CPLR 3216(b)(3) to the plaintiffs, who were then pro se, by certified mail. The Cohens also submitted evidence, however, that the mailings were returned to them. The United States Postal Service tracking history submitted by the Cohens indicated that one delivery was attempted and that five days later a reminder was sent to schedule redelivery before the mailings were returned to the sender. * * *

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of such demand” … . “Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand” … . Here, in support of their motion, the Cohens submitted proof that the 90-day demands were not received by the plaintiffs. Kurbonov v Cohen, 2026 NY Slip Op 01044, Second Dept 2-25-26

Practice Point: To support a motion to dismiss for want of prosecution, the defendant must proof the 90-day notice was actually received by the pro se plaintiff. Proof of mailing is not enough.

 

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HERE THE SCHOOL DISTRICT HAD ACTUAL KNOWLEDGE OF THE NATURE OF EACH NEGLIGENT-SUPERVISION CLAIM WITHIN 90 DAYS OF THE INCIDENTS; WHERE A SCHOOL HAS TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING A CLAIM, THE ABSENCE OF AN ADEQUATE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IS NOT A BAR TO GRANTING LEAVE TO FILE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against defendant school district should been granted. The petition alleged negligent supervision a student who was assaulted, harassed, and bullied on specific occasions. There were contemporaneous incident reports. The school district, therefore, had knowledge of the nature of the claims within 90 days of each incident:

… [T]he petitioner established that the School District had actual knowledge of the essential facts constituting the claim within 90 days of each incident included in the notice of claim. The petitioner submitted, among other things, incident reports and documentation of investigations conducted by the School District within days of the incidents … , police reports that documented communications and an investigation by school officials … , an electronic communication between the petitioner and a school official … , and an “[a]ction [p]lan” created pursuant to a meeting between the petitioner and school officials where the alleged wrongful conduct and the plans to monitor the students and address the conduct were discussed … .

As the petitioner demonstrated that the School District acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the School District would not be prejudiced by the late notice of claim … . In opposition to the petitioner’s initial showing, the School District failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits … .

Although the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve the notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Polito v North Babylon Sch. Dist., 2026 NY Slip Op 01067, Second Dept 2-25-26

Practice Point: In the context of a petition for leave to file a late notice of claim against a school district, the absence of a reasonable excuse for timely filing the claim may be overlooked where it is demonstrated the school had timely knowledge of the facts underlying the claims.

 

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THE MORTGAGE DEBT WAS ACCELERATED WHEN THE FIRST FORECLOSURE ACTION WAS BROUGHT IN 2008; THE DEFENDANTS SUBSEQUENTLY ENTERED A LOAN MODIFICATION AGREEMENT IN 2008 WHICH DEACCELERATED THE DEBT AND RESET THE STATUTE OF LIMITATIONS; THE DEFENDANTS DEFAULTED AGAIN IN 2009; IN 2018 THE DEBT WAS ACCELERATED AGAIN BY THE FILING OF THE INSTANT FORECLOSURE ACTION; BECAUSE THE SIX-YEAR STATUTE OF LIMITATIONS STARTS RUNNING FROM EACH MISSED PAYMENT, THE 2018 FORECLOSURE ACTION WAS TIMELY BROUGHT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the foreclosure action was timely brought. The mortgage was initially accelerated in 2008 when the first foreclosure action was brought. But later in 2008 the defendants entered a loan modification agreement. That agreement validly revoked the acceleration of the debt and reset the statute of limitations. Defendants again defaulted on the mortgage payments in 2009. They argued that the statute of limitations started running upon their 2009 default, rendering the current foreclosure action untimely. The Third Department disagreed, finding that the plaintiff was not obligated to foreclose upon the first missed payment. Rather the plaintiff could wait and accelerate the debt upon any subsequent default, subject to the forfeiture of the right to recover any missed payments which occurred more than six years before the action was brought (each missed payment triggers a six-year statute of limitations):

… [P]laintiff submitted evidence establishing that the 2008 acceleration was validly revoked through the execution of the loan modification agreement, thereby causing the statute of limitations to reset as of that date. Defendants do not dispute that, even after FAPA [Foreclosure Abuse Prevention Act], a validly executed loan modification agreement can reset the statute of limitations period on a previously accelerated loan, so long as the agreement complies with the writing requirements of General Obligations Law § 17-105 (1) … . * * *

Nothing in FAPA or the General Obligations Law changed the basic rule that the statute of limitations runs separately from the due date of each unpaid installment … , or, if the mortgagee elects to accelerate the entire debt, from the date of the acceleration … . * * *

Defendants’ missed payments in 2009 gave plaintiff the right to sue to recover such payments, but did not obligate plaintiff to do so. Instead, plaintiff could wait to exercise its option to accelerate the entire amount of the debt upon any subsequent default, in which case the statute of limitations would run from the date of the acceleration … , subject to forfeiture of the right to recover any missed payments that did not occur within six years prior to the commencement of the foreclosure action … . Ditech Fin. LLC v Temple, 2026 NY Slip Op 00951, Third Dept 2-19-26

Practice Point: A loan modification agreement entered within six years of the 2008 acceleration of the debt deaccelerated the debt and reset the statute of limitations (a scenario not changed by the Foreclosure Abuse Prevention Act [FAPA]).

Practice Point: The six-year foreclosure statute of limitations starts running upon each missed mortgage payment. Here the 2018 foreclosure action was timely because it was brought within six years of a missed payment. Any missed payments which occurred prior to six years before the 2018 foreclosure was commenced were forfeited.

 

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EMPLOYMENT DISCRIMINATION CASES ARE REVIEWED UNDER “NOTICE PLEADING” STANDARDS WHERE ONLY FAIR NOTICE OF THE NATURE OF THE CLAIM AND ITS GROUNDS ARE REQUIRED; HERE PLAINTIFF’S ALLEGATION THAT A SUPERVISOR STATED SHE RECEIVED HIGH EVALUATIONS BECAUSE SHE ENGAGED IN SEXUAL RELATIONS WITH HER SUPERIORS WAS SUFFICIENT TO SURVIVE DISMISSAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that a single remark by a supervisor may sustain an employment discrimination or hostile work environment claim. The court noted the more lenient pleading requirement for employment discrimination actions:

… [E]mployment discrimination cases are generally reviewed under notice pleading standards … . Indeed, a “plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds” … . In an action brought under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL), “[f]air notice is all that is required to survive at the pleading stage” … . * * *

Although a “single, isolated comment” or “stray remark” will not always suffice to sustain a discrimination or hostile work environment claim … , “a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace” could be actionable … . Here, where plaintiff alleged that her supervisor implied that she only received high evaluation scores because she was engaging in sexual relations with higher-ups, the alleged remarks and attendant hostile conduct were more than “petty slights and trivial inconveniences” … . Cummings v City of New York, 2026 NY Slip Op 00972, First Dept 2-19-26

Practice Point: Pleading standards are more lenient in employment discrimination cases. Fair notice of the nature of the claim and its grounds are sufficient to survive dismissal.

 

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ALTHOUGH A JURY TRIAL WAIVER IN A CONTRACT IS NOT ENFORCED WHERE A COUNTERCLAIM ASSERTS FRAUDULENT INDUCEMENT, HERE THE FRAUDULENT-INDUCEMENT COUNTERCLAIM SOUGHT RESCISSION OF THE CONTRACT, EQUITABLE RELIEF WHICH MUST BE TRIED BY THE COURT; THE MOTION TO STRIKE DEFENDANTS’ JURY-TRIAL DEMAND SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing the denial of plaintiff’s motion to strike defendants’ jury demand, determined defendants were not entitled to a jury trial on the counterclaims. Defendants asserted fraudulent inducement and sought rescission of the contract in addition to seeking damages as an alternative. Because rescission in equitable relief, a jury trial is not available:

… [D]efendants are not entitled to a jury trial on their counterclaims. Generally, a party asserting a fraudulent inducement claim may pursue a jury trial, notwithstanding the existence of a jury waiver clause, when that party primarily seeks money damages … . Here, by contrast, defendants’ counterclaims seek rescission of the contract and side letter agreement, with damages only sought in the alternative. As the Court of Appeals has held, “[a]ll issues pertaining to [an] equitable defense and counterclaim, whether matters of fact or law, [are] to be determined by the court under CPLR 4101” … and “[r]escission claims, of course, are equitable in nature” … . Accordingly, defendants’ counterclaims must be tried by the court, not a jury, by virtue of the equitable relief they seek. Penske v National Holding Corp., 2026 NY Slip Op 00978, First Dept 2-19-26

Practice Point: Where a cause of action seeks equitable relief, here rescission of a contract, it must be tried by the court, not a jury, even if damages are demanded in the alternative.

 

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THE JUDGE FAILED TO COMMUNICATE WITH THE OHIO COURT AFTER LEARNING OF ANOTHER CUSTODY-RELATED PROCEEDING THERE AND FAILED TO CONSIDER WHETHER IT SHOULD EXERCISE TEMPORARY EMERGENCY JURISDICTION BASED ON ALLEGATIONS OF DOMESTIC VIOLENCE IN MOTHER’S PETITION (FIRST DEPT).

The First Department, reversing Family Court, determined the judge committed reversible error by failing to communicate with the Ohio court after learning of another custody-related proceeding there. In addition, the judge failed to consider whether to exercise temporary emergency jurisdiction to protect mother and child. Mother’s custody petition alleged serious domestic violence:

Family Court failed to satisfy the procedural mechanism required by the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law, art 5-A) when a custody-related proceeding is pending in another state. Specifically, after the court became aware of the Ohio proceeding, the record does not reflect that the court attempted to communicate with the Ohio court, which is a reversable error … . * * *

… Family Court failed to comply with the statutory requirement to consider, under the circumstances presented and in light of the serious allegations of domestic violence in the mother’s petition, whether it was necessary to exercise temporary emergency jurisdiction to protect the mother and the child … . Matter of Shelby C.V. v Joshua W.K, 2026 NY Slip Op 01002, First Dept 2-17-26

Practice Point: It is reversible error for a judge to fail to communicate with a court in another jurisdiction after learning of another custody-related proceeding there.

Practice Point: Allegations of domestic violence may trigger the statutory requirement that a judge consider exercising temporary emergency jurisdiction to protect family members.

 

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