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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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THE JUDGE DISMISSED FATHER’S NEW YORK CUSTODY PETITION BECAUSE MOTHER HAD PREVIOUSLY COMMENCED A CUSTODY PROCEEDING IN FLORIDA; BECAUSE THE JUDGE DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT, THE MATTER WAS REMITTED (SECOND DEPT).

The Second Department, reversed Family Court and remitted the matter. The Family Court judge dismissed the father’s New York custody petition on the ground mother had previously commenced a custody proceeding in Florida where she and the child resided. The judge, however, did not follow the procedures mandated by the Uniform Child Custody Jurisdiction and Enforcement Act which must precede a ruling that one of the two courts is the most appropriate forum:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law article 5-A), a New York court “may not exercise its jurisdiction” in a child custody proceeding “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [Domestic Relations Law article 5-A], unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1] …). “If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2] …).

A court, acting pursuant to these provisions, must make a record of its communications with a court of another state on substantive matters, must promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75-i[4] …). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2] …). Matter of Adames v Digangi, 2026 NY Slip Op 05022, Second Dept 8-19-26

Practice Point: Consult this decision for an explanation of the statutory procedure mandated when a judge must decide which of two forums is appropriate for a custody proceeding. Here mother commenced a custody proceeding in Florida and father subsequently commenced a custody proceeding in New York.

 

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THE TOWN PLACED A $24,000 LIEN ON PLAINTIFF’S PROPERTY FOR REPAIR WORK DONE BY THE TOWN BEFORE THE PROPERTY WAS TRANSFERRED TO PLAINTIFF; PLAINTIFF BROUGHT A PROCEDURAL-DUE-PROCESS ACTION AGAINST THE TOWN (42 USC 1983); THE ACTION FAILED BECAUSE OF THE AVAILABILITY OF A CPLR ARTICLE 78 PROCEEDING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town was entitled to summary judgment dismissing plaintiff’s 42 USC 1983 action alleging a violation of procedural due process. Plaintiff, after purchasing the property, was assessed over $24,000 for repairs to the property paid for by the town and necessitated by the prior owner’s failure to maintain the property. The procedural due process claim failed because plaintiff had the option of bringing an Article 78 proceeding:

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment” … . “‘Due process is flexible and calls for such procedural protections as the particular situation demands'” … . In determining what due process requires in a specific context, courts consider “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” … .

Here, although the plaintiff’s property interest was affected by the special assessment and lien, the risk of erroneous deprivation was remedied by the availability of a proceeding pursuant to CPLR article 78 … . Accordingly, the Town demonstrated, prima facie, that it did not deprive the plaintiff of due process … . First Sovereign Equity Group, Inc. v Town of Smithtown, 2026 NY Slip Op 04928, Second Dept 8-12-26

Practice Point: Here the risk of erroneous deprivation of plaintiff’s property by the town was remedied by the availability of a CPLR article 78 proceeding. Therefore the criteria for a viable procedural-due-process action against the town were not met.

 

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APPARENTLY THE MORTGAGOR WAS DECEASED AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED RENDERING THE FORECLOSURE ACTION A NULLITY; SUPREME COURT DID NOT HAVE JURISDICTION, SO AMENDING THE CAPTION TO ADD THE EXECUTOR DID NOT EFFECTUATE JURISDICTION OVER THE ESTATE; ECHO BAY PURCHASED THE PROPERTY FROM THE MORTGAGOR’S SUCCESSORS FOUR YEARS LATER; ECHO BAY HAD THE RIGHT TO INTERVENE, MOVE TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, AND MOVE TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, granting the motion to intervene and dismissing the foreclosure complaint, apparently determined the mortgagor was deceased at the time the foreclosure action was brought rendering the action a nullity. Therefore Supreme Court did not have jurisdiction to amend the caption to add the mortgagor’s executor. For years later, Echo Bay purchased the property from the mortgagor’s successors and properly moved to intervene, to vacate the judgment of foreclosure and sale and to dismiss the complaint:

“‘A party may not commence a legal action or proceeding against a dead person'” … , and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . * * *

… [T]he fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention … , and that branch of the plaintiff’s prior motion which was for leave to amend the caption to substitute the executor of [mortgagor’s] estate as a defendant in this action did not effectuate jurisdiction over her estate … . * * *

… Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against [the mortgagor], the sole borrower and property owner as alleged in the complaint … . The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1] …). “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” … . Federal Natl. Mtge. Assn. v Jackson, 2026 NY Slip Op 04927, Second Dept 8-12-26

Practice Point: If the mortgagor is deceased when the foreclosure action is commenced, the action is a nullity and the judgment of foreclosure and sale is void. A subsequent purchaser of the property can successfully move to intervene, vacate the judgment and dismiss the foreclosure complaint.

 

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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD A CORPORATE DEFENDANT ALLEGED TO BE “UNITED IN INTEREST” WITH A NAMED CORPORATE DEFENDANT SHOULD HAVE BEEN GRANTED; ALTHOUGH THE STATUTE OF LIMITATIONS HAD PASSED, THE RELATION-BACK DOCTRINE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation-back doctrine applied to allow adding a defendant after the statute of limitations had run. Plaintiff slipped and fell on some wires in her office and sued a company called Blackbox Corporation (apparently alleging responsibility for the presence of wires). Plaintiff sought to amend the complaint to add another company, Nu-Vision, alleging it was “united in interest” with Blackbox:

In order to establish the applicability of the relation-back doctrine, a plaintiff must demonstrate that: “(1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his or her defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well” … .. “The ‘linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

Contrary to the Supreme Court’s determination, the plaintiff demonstrated the applicability of the relation-back doctrine. As to the first prong, there is no dispute that the plaintiff sought to allege causes of action against Nu-Vision arising out of the same occurrence as the causes of action asserted in the amended complaint. The plaintiff also established the second prong, that Nu-Vision and Black Box Corporation of Pennsylvania were “united in interest,” by demonstrating that, under the particular circumstances presented, Nu-Vision and Black Box Corporation of Pennsylvania “intentionally or not, often blurred the distinction between them” … . As to the third prong, the plaintiff sufficiently established that Nu-Vision knew or should have known that, but for a mistake, it would have been named as a defendant … .   Tomlinson v City of New York, 2026 NY Slip Op 04973, Second Dept 8-12-26

Practice Point: Here plaintiff was allowed to amend the complaint to add a corporate defendant after the statute of limitations had passed pursuant to the relation-back doctrine. The added defendant was deemed to be “united in interest” with a named corporate defendant.

 

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IN THIS LABOR LAW ARTICLE 6 AND BREACH OF CONTRACT ACTION FOR UNPAID COMMISSIONS, PLAINTIFF, WHO SUED GAIA PRODUCE AS HIS EMPLOYER, SOUGHT TO AMEND THE COMPLAINT TO ADD ANOTHER PARTY AS HIS EMPLOYER; BASED UPON THE DEFINITION OF “EMPLOYER” IN THE LABOR LAW, THE PROPOSED AMENDMENT WAS PROPER AND SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to amend the complaint to add a defendant, Nehoumovich. The suit against plaintiff’s employer, Gaia Produce, alleged the failure to pay commissions in violation of Labor Law article 6. Plaintiff alleged Nehoumovich was also plaintiff’s employer. Based on the definition of “employer” in the Labor Law, the Second Department held the proposed amendment was not palpably insufficient or patently devoid of merit:

“Article 6 of the Labor Law sets forth a comprehensive set of statutory provisions enacted to strengthen and clarify the rights of employees to the payment of wages” … . “Labor Law § 190(3) broadly defines an ’employer’ as ‘any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service'” … . “Under the ‘economic reality’ test, the relevant factors include whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records” … . The Supreme Court is “also free to consider any other factors it deems relevant to its assessment of the economic realities” … .

Here, the proposed amendment to add Nahoumovich as a defendant was not palpably insufficient or patently devoid of merit … . The proposed amended complaint alleged, inter alia, that Nahoumovich was “responsible for . . . hiring and firing,” that he “supervised [the] [p]laintiff,” “assign[ed] [the plaintiff] responsibilities concerning negotiating, pricing, and collecting,” that he “was involved in determining the terms and conditions of [the plaintiff’s] employment” and “how [the plaintiff’s] commissions were calculated,” and that he “overs[aw] commission reports.” The plaintiff further submitted a transcript of his own deposition testimony regarding those allegations, and that of Nahoumovich, who acknowledged, among other things, that he made certain hiring recommendations, supervised the plaintiff, provided the plaintiff with directives, and set up the commission structure. The fact that Nahoumovich did not sign the plaintiff’s paychecks is not dispositive … . Under the totality of the circumstances presented here, the plaintiff plausibly alleged that Nahoumovich was an “employer” within the meaning of Labor Law § 190(3) … . Sproule v Gaia Produce, LLC, 2026 NY Slip Op 04971, Second Dept 8-12-26

Practice Point: Consult this decision for insight into the criteria for determining whether a party is an “employer” within the meaning of the Labor Law in an action seeking unpaid commissions.

 

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IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

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PLAINTIFF WAIVED THE OBJECTION TO A LATE ANSWER BY FAILING TO REJECT THE ANSWER WITHIN 15 DAYS OF RECEIPT; DEFENDANTS MOTION TO COMPEL ACCEPTANCE OF THE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff waived any objection to the defendants’ late answer by failing to reject the answer within 15 days of receipt:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.” Here, the plaintiff’s undisputed failure to reject the defendants’ answer within the 15-day statutory time frame constituted a waiver of the late service and the default … . Accordingly, the Supreme Court should have granted the defendants’ motion to compel the plaintiff to accept their late answer and denied the plaintiff’s cross-motion for leave to enter a default judgment against the defendants … . PNC Bank, N.A. v Kane, 2026 NY Slip Op 04967, Second Dept 8-12-26

Practice Point: If plaintiff wishes to object to receipt of a late answer, plaintiff must reject the answer within 15 days or the objection is waived and the defendant can move to compel acceptance.

 

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IN THIS PUBLIC-BEACH SWIMMING-ACCIDENT CASE, THE PETITIONER SHOULD NOT HAVE BEEN GRANTED PERMISSION TO FILE A LATE NOTICE OF CLAIM; THE TOWN DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM; THE PETITIONER DID NOT HAVE A GOOD EXCUSE; THE TOWN MADE A PARTICULARIZED SHOWING OF PREJUDICE; AND THE CLAIM WAS CLOSE TO MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to serve a late notice of claim against the town in this swimming-injury case should not have been granted. Petitioner was floating 100 yards beyond the designated swimming area at a town beach with the back of his head toward the ocean when a wave crashed over him, forcing him to the ocean floor and causing a severe spinal cord injury. The Second Department went through all the criteria for allowing late notice and found that the facts fell short:

… [T]he petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. “‘[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim'” … . “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” … . * * *

… [I]n light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys … . * * *

… [T]he Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” … . The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident. * * *

… [T]he petitioner’s claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless … . Matter of Cataldo v Town of E. Hampton, 2026 NY Slip Op 04946, Second Dept 8-12-26

Practice Point: Consult this decision for a concise factual explanation for the denial of permission to file a late notice of claim.

 

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