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PLAINTIFFS’ REQUEST FOR SPECIFIED DISCOVERY IN OPPOSITION TO AN “ANTI-SLAPP-LAW” MOTION TO DISMISS SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the request for specified discovery made by plaintiffs with respect to the SLAPP (strategic lawsuits against public petition and participation) defense should have been granted:

… [I]n opposing defendants’ motion to dismiss … , plaintiffs made an alternative request for specified discovery pursuant to CPLR 3211(g)(3). In essence, a CPLR 3211(g) motion is an accelerated summary judgment motion brought in the context of a SLAPP claim … . The statute makes special provision for discovery upon an application by the party opposing the CPLR 3211(g) motion. Such discovery is tailored to aid a party in summoning “facts essential to justify its opposition” to a SLAPP claim (CPLR 3211[g][3]) and thereby show a substantial basis for their claims … .

As required by the statute, plaintiffs made their request for specified discovery under oath and with a detailed list of the depositions they seek in ascertaining who contacted the FBI, who knew what about the investigation, and when (see CPLR 3311[g][3]). Plaintiffs seek to substantiate their theory that defendants themselves instigated the FBI investigation to provide a predicate for the guardianship proceeding.

Supreme Court incorrectly held that the anti-SLAPP law did not apply, but, if it did, plaintiffs had established a substantial basis for their claims on the existing record. The court thus never reached plaintiffs’ alternative request for discovery. The parties did not brief the issue of specified discovery on the appeal. Under these circumstances, we modify Supreme Court’s denial of the motion to dismiss directed at the SLAPP claims and remand the action for discovery under CPLR 3211(g)(3) prefatory to determination of the dismissal motion. Kohler v West End 84 Units LLC, 2025 NY Slip Op 05042, First Dept 9-23-25

Practice Point: CPLR 3311[g][3] provides for discovery in the face of a motion to dismiss pursuant the anti-SLAPP statute. Here the judge’s failure to grant the discovery request required remittal.

 

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PLAINTIFF DEMONSTRATED THAT TRADITIONAL SERVICE OF PROCESS WAS “IMPRACTICABLE;” SERVICE BY PUBLICATION SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to serve defendants by publication. The process server made several attempts to serve Noren and Eng at addresses where they didn’t reside and attempted to learn their addresses through records searches:

The Supreme Court erred in denying, as academic, that branch of the plaintiff’s unopposed motion which was for leave to effect service on Noren and Eng by publication pursuant to CPLR 316. A court may permit service by publication, upon motion without notice, if traditional service is “impracticable” (CPLR 308[5]; see 316). “The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4)” … . “Whether service is impracticable depends on the facts and circumstances surrounding each case” … .

Here, the Supreme Court should have permitted the plaintiff to serve Noren and Eng by publication, as the plaintiff demonstrated that it was impracticable to serve them by traditional means … . U.S. Bank Trust, N.A. v Public Admr. of Suffolk County, 2025 NY Slip Op 05009, Second Dept 9-17-25

Practice Point: Consult this decision for insight into the criteria for demonstrating traditional service of process is “impracticable” such that service by publication is appropriate.

 

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SUPREME COURT PROPERLY CERTIFIED PLAINTIFFS AS A CLASS BASED ON THE FIVE MANDATORY FACTORS IN CPLR SECTIONS 901 AND 902; THE CLASS DEFINITION DID NOT CONSTITUTE AN IMPERMISSIBLE “FAIL SAFE” CLASS UNDER THE FEDERAL RULES OF CIVIL PROCEDURE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, determined Supreme Court properly certified plaintiffs as a class in this wage dispute. Plaintiffs, who acted as “flaggers” at defendants’ construction sites, argued they were wrongly classified as “crossing guards” or “traffic control” and paid at a rate lower than the prevailing wage. The opinion rejected the argument that the class definition constituted an impermissible “fail safe” class under the Federal Rules of Civil Procedure:

CPLR 901(a) sets forth five factors required to obtain class certification, which are commonly referred to as, “numerosity, commonality, typicality, adequacy of representation and superiority” … . A class action can be maintained pursuant to CPLR 902 only if the five prerequisite factors stated in CPLR 901(a) are met … . * * *

Defendants assert that the class definition constitutes an impermissible “fail safe” class under the Federal Rules of Civil Procedure (FRCP), Rule 23(b). A “fail safe” class exists “when the class itself is defined in a way that precludes membership unless the liability of the defendant is established” … . A “fail safe” class is impermissible because it prevents an adverse judgment being entered against plaintiffs … . Defendants argue that the sole issue in the case is whether or not a particular member was in fact acting as a “flagger” and thus that class membership and liability are inextricably intertwined. …

Supreme Court’s decision amended the definition of the class to avoid an impermissible “fail safe” class under FRCP 23 (b), by excluding reference to “whether public works contracts required the payment of prevailing wages on subject projects” as applying to the ultimate issue of liability. Supreme Court amended the definition of the class to state, “All persons employed by Out-Look Safety LLC at any time since April 16, 2018 through January 28, 2024, who worked as non-union construction flaggers on Restani, Safeway, Triumph, and/or Hawkeye projects requiring the payment of prevailing wages in New York City.” McMillian v Out-Look Safety LLC, 2025 NY Slip Op 04963, First Dept 9-11-25

Practice Point: Consult this opinion for insight into the proof required to meet the five factors for class certification under CPLR 901 and 902, as well the nature of an impermissible “fail safe” class definition. “A ‘fail safe’ class exists ‘when the class itself is defined in a way that precludes membership unless the liability of the defendant is established’ …”.

 

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DEFENSE COUNSEL’S REMARKS ALLEGING PLAINTIFF AND HER ATTORNEY FABRICATED EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE DENIED PLAINTIFF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s verdict in this sidewalk slip and fall case, determined defense counsel’s remarks in the opening and summation, alleging that the plaintiff and her lawyer, fabricated the account of where she fell, deprived plaintiff of a fair trial:

… [D]uring his opening statement, the defendant’s attorney made improper remarks accusing the plaintiff’s attorney of assisting the plaintiff with fabricating her account of where she fell, stating, among other things, that after the plaintiff told her attorney what street she fell on, “they went out to look for the worst spot on the street and they found it.” The defendant’s attorney further stated that the location of the fall claimed by the plaintiff was “lawyer-created fantasy” … . Similarly, on summation, the defendant’s attorney improperly stated that the plaintiff “changed her testimony based upon something her lawyer said to her,” and “although ‘perjury’ might be a little of a harsh word . . . she certainly testified willfully falsely” … . In addition, the defendant’s attorney improperly injected his own beliefs on summation, stating, “I truly don’t believe [the accident] happened here” and, after accusing the plaintiff of testifying falsely, stating, “I felt bad for [the defendant]. I felt bad for the whole system” … . Moreover, the defendant’s attorney inappropriately encouraged the jurors to speculate that the plaintiff declined to call an investigator as a witness at trial because the investigator would have testified unfavorably to the plaintiff … . Further, the defendant’s attorney improperly appealed to the passions of the jurors by stating that “[e]verything [the defendant has] worked for for his entire life is at risk on this trial” and that “[the plaintiff] wants to take my client’s property or money” … . Under the circumstances of this case, “‘the comments of the [defendant’s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial'” and “‘so tainted the proceedings as to have deprived [the plaintiff] . . . of a fair trial'” … . Windham v Campoverde, 2025 NY Slip Op 04939, Second Dept 9-10-25

Practice Point: Here counsel’s remarks in the opening and summation irreparably tainted the proceedings requiring a new trial.

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT ADEQUATE PROOF THAT THE NOTICE OF DEFAULT WAS PROPERLY MAILED TO AND RECIEVED BY THE DEFENDANT AS REQUIRED BY THE MORTGAGE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not prove the notice of default was mailed to defendant as required by the mortgage agreement:

The plaintiff’s submissions were insufficient to establish that a notice of default in accordance with section 22 of the mortgage agreement was sent to the defendant as required by section 15 of the mortgage agreement. Section 15 of the mortgage agreement provides that notice to the borrower is considered sent “when mailed by first class mail or when actually delivered to [the borrower’s] notice address if sent by other means.” The affidavit of mailing was insufficient to establish a mailing by either first-class or certified mail. Although [the affidavit] asserted personal knowledge of the mailing, the affidavit was dated nine months after the date on which the notices of default were purportedly mailed, and the affidavit was unsupported by any contemporaneous documentation … . The certified mail receipts submitted by the plaintiff were not stamped or postmarked, and the domestic return receipts were unsigned. Thus, there was inadequate proof that the notices of default were actually delivered to the defendant. Further, although mailing may also be established by proof of a standard office mailing procedure … , in her affidavit [the foreclosure specialist] failed to make the requisite showing that she was familiar with the mailing practices and procedures of the plaintiff’s counsel, which apparently mailed the notices of default … and, in any event, failed to describe a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Wilmington Trust, N.A. v Singh, 2025 NY Slip Op 04938, Second Dept 9-10-25

Practice Point: Once again, failure to prove mandatory notices were properly mailed and received by the defendant in a foreclosure action required reversal of the judgment of foreclosure.

 

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THE JUDGE IN THIS SIDEWALK SLIP AND FALL CASE FAILED TO ADEQUATELY EXPLAIN TO THE JURY THE DIFFERENT DUTIES OWED BY THE TENANT AND THE OWNER OF THE BUILDING ABUTTING THE SIDEWALK; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED; IN ADDITION, THE SECOND DEPARTMENT HELD DAMAGE AWARDS FOR PLAINTIFF’S INJURED ANKLE WERE EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this slip and fall case should have been granted. The defendants are the owner and tenant in the building abutting the allegedly defective sidewalk where plaintiff fell. The judge’s charge to the jury did not adequately explain how defendants’ duties differed as tenant and landowner. The Second Department also held the damage awards were excessive:

… Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. In charging the jury, the court failed to differentiate between White Castle [tenant] and Asaro [landowner], and failed to identify how their duties differed as tenant and as landowner, respectively. Thus, the court did not “adequately convey[ ] the sum and substance of the applicable law to be charged” … . Due to the possibility that this conflation may have prejudiced either defendant or both defendants, each defendant is entitled to a new trial on the issue of liability against it … . Rendon v White Castle Sys., Inc., 2025 NY Slip Op 04925, Second Dept 9-10-25

Practice Point: Here the jury instructions did not clearly explain the different duties owed by a tenant versus a landowner with respect to a defective sidewalk abutting the building. The inadequate instructions required that the plaintiff’s verdict in this slip and fall case be set aside.

 

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A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY THE PLAINTIFF; THEREFORE THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE WERE NOT MET AND PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the business records relied upon by plaintiff in this breach of contract action were not supported by a sufficient foundation. Therefore, under the criteria for the business records exception to the hearsay rule, the documents were inadmissible hearsay and could not support plaintiff’s summary judgment motion:

“‘Records made in the regular course of business are hearsay when offered for the truth of their contents'” … . “When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, ‘[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … .

In support of its motion for summary judgment on the complaint, the plaintiff submitted an affidavit of Denine Chevillot Knowles, its vice president. Though Knowles attested that she had “personal knowledge of the relevant business practices of Plaintiff,” she did not attest that the records submitted in support of the motion were “made in the regular course of business” and were “needed and relied on in the performance of functions of the business,” that it was “the regular course of such business to make the record[s],” or that the records were “made at or about the time of the event being recorded” … . Thus, Knowles failed to lay a proper foundation for the admission of any records concerning the defendants’ payment history and default … . Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule. HSBC Bank USA, N.A. v Vasishta, 2025 NY Slip Op 04885, Second Dept 9-10-25

Practice Point: Business records are hearsay. To be admissible the criteria for the business records exception to the hearsay rule must be met. Consult this decision for the foundation requirements for the admissibility of business records.​

 

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ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the temporary restraining order prohibiting defendants from revealing plaintiff’s identity to third parties in this defamation action was an unconstitutional prior restraint on speech. Plaintiff had been allowed to sue under a pseudonym:

… Supreme Court erred in granting that branch of the plaintiffs’ motion which was for a temporary restraining order prohibiting the defendants from disclosing the plaintiffs’ identities to third parties, sharing any statements or documents regarding the instant action, or discussing the instant action. “A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . “Any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition'” … . An injunction issued in the area of First Amendment rights under the United States Constitution “must be tailored as precisely as possible to the exact needs of the case” … . Here, the Supreme Court’s temporary restraining order was overbroad, such that it prevented the defendants from discussing the instant action with third-party witnesses or disclosing the plaintiffs’ names for investigative purposes … . Doe v Eliyas, 2025 NY Slip Op 04876, Second Dept 9-10-25

Practice Point: Consult this decision for insight into when a restraining order prohibiting revealing the identity of a plaintiff suing under a pseudonym is an unconstitutional prior restraint of speech.

 

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DEFENDANT, WHO MOVED TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION, SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING ON WHETHER HE WAS PROPERLY SERVED WITH THE COMPLAINT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, who had defaulted in this foreclosure action, was entitled to a hearing on whether he had been properly served with the complaint:

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service …”. “A defendant moving to vacate a default pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service” …. . “While a mere conclusory denial of service will not suffice to rebut a prima facie showing of proper service, the sworn denial, combined with documentary and other evidence supporting such a claim, is sufficient to rebut the plaintiff’s prima facie showing of proper service and to necessitate an evidentiary hearing” … . “If the presumption is rebutted, a hearing is necessary, at which the plaintiff must establish jurisdiction by a preponderance of the evidence” … .

… [T]he defendant demonstrated his entitlement to a hearing on the issue of service through his affidavit and evidentiary submissions. The defendant averred that he has never lived at the address where he was purportedly served on February 28, 2008, and that he lived at a different address, 1222 35th Avenue in Long Island City, from 2004 through February 2008. He submitted proof of his residence at 1222 35th Avenue. Further, he submitted proof that the process server who allegedly served the defendant on February 28, 2008, swore that he served another individual in South Ozone Park at the exact same time. The defendant also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server was denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. Since the defendant’s submissions rebutted the presumption of proper service established by the process server’s affidavit, the Supreme Court should have directed a hearing to determine whether personal jurisdiction was acquired over the defendant … . Bank of N.Y. Trust Co., N.A. v Herbin, 2025 NY Slip Op 04865, Second Dept 9-10-25

Practice Point: Consult this decision for the proof requirements for a hearing on whether the court acquired jurisdiction through proper service of the complaint.​

 

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NO FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS RELIED UPON BY THE REFEREE WAS LAID; THE REFEREE RELIED ON UNIDENTIFIED AND UNPRODUCED RECORDS; THE JUDGMENT OF FORELCOSURE SHOUILD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment of foreclosure was not supported because the referee’s report was based on documentary evidence which was not identified or produced and for which no foundation had been laid in the relevant affidavit:

… [T]he referee relied on an affidavit of Tom Croft, an “SVP of default” of Carrington Mortgage Services, LLC, attorney-in-fact for the plaintiff. Croft’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because he failed to attest that he was personally familiar with the record-keeping practices and procedures of his employer or the plaintiff … . Moreover, Croft’s computations were “based upon a review of unidentified and unproduced business records” and, consequently, “constitute[d] inadmissible hearsay and lack[ed] probative value” … on that additional ground. The error in relying on Croft’s hearsay evidence was not harmless, as, contrary to the plaintiff’s contention, the referee’s determination is not substantially supported by any admissible evidence in the record … . Bank of Am., N.A. v Barnett, 2025 NY Slip Op 04861, Second Dept 9-10-25

Practice Point: Unless the business records relied upon in the referee’s report are produced and supported by an adequate foundation, the report is inadmissible hearsay.

 

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