You are here: / Civil Procedure
, ,

ONLY AN EXPRESS ACKNOWLEDEMENT OF THE MORTGAGE DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-105 COULD REVIVE OR TOLL THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION; THE REFERENCES TO THE MORTGAGE DEBT IN FINANCIAL STATEMENTS AND TAX RETURNS PROVIDED TO THE MORTGAGOR BY THE MORTGAGEE WERE NOT ENOUGH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive two-judge dissent, determined that the statute of limitations on the underlying foreclosure action was not tolled based upon acknowledgments of the mortgage debt in financial statements and tax returns. Rather, pursuant to General Obligations Law 17-105, only and express promise to pay the debt would revive an otherwise expired statute of limitations:

The primary question presented by this appeal is which section of article 17 of the General Obligations Law governs the tolling or revival of the statute of limitations period in an action pursuant to Real Property Actions and Proceedings Law (RPAPL) § 1501 (4). RPAPL § 1501 (4) allows a party to cancel a mortgage where the limitations period for commencing a foreclosure action has expired. We hold that General Obligations Law section 17-105, not section 17-101, governs whether the statute of limitations has been tolled or revived in such an action. * * *

Under General Obligations Law § 17-105 (1), the Partnership’s (mortgagee’s) actions in this case could only toll or revive the statute of limitations for the Council (mortgagor) to bring a foreclosure action if the Partnership made an “express” “promise to pay the mortgage debt.” Accordingly, the Appellate Division correctly concluded that the Partnership’s delivery of its financial statements and tax returns to Council did not meet the requirements of section 17-105 (1) because they were not express promises to pay the mortgage debt (189 AD3d at 28).  Batavia Townhouses, Ltd. v Council of Churches Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 03361, CtApp 5-24-22

Practice Point: Here references to the mortgage debt in financial statements and tax returns provided to the mortgagor by the mortgagee did not revive or toll the statute of limitations on the underlying foreclosure action. Pursuant to General Obligations Law 17-105, only an express acknowledgement of the mortgage would revive the action.

 

, , ,

PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who, along with other patients, was allegedly sexually assaulted by a doctor, Newman, employed by defendant hospital (Mount Sinai), was entitled to certain discovery. Plaintiff sought discovery of party statements, incident reports, the identities of the other assaulted patients, and the names of the doctor’s coworkers at the time of each assault. Plaintiff was entitled to documents not protected by the quality assurance privilege. The doctor-patient privilege did not extend to the identities of the other assaulted patients. And the names of the doctor’s coworkers were in a statement prepared by the Health and Human Services Department to which plaintiff was entitled:

We reject Mount Sinai’s assertion that privilege excuses it from complying with plaintiff’s discovery demands regarding the identities of the other three patients that defendant Newman assaulted. The doctor-patient privilege provided for by CPLR 4504(a) protects information relevant to a patient’s medical treatment, but the privilege does not cover incidents of abuse not part of a patient’s treatment … . Moreover, while the court stated that disclosure would violate HIPAA, federal regulations provide for disclosure of HIPAA-protected documents subject to a showing that the party seeking disclosure has made a good faith effort to secure a qualified protective order, and plaintiff has done so in each of her motions (45 CFR 164.512[e][ii], [v] …).

… [T]he identities of defendant Newman’s coworkers at the times of each of the assaults are relevant and must be disclosed, as those coworkers may have information concerning his conduct … . The names of the coworkers were contained in a statement of deficiencies prepared by Department of Health and Human Services, Center for Medicare and Medicaid Services, and plaintiff is entitled to production of that statement, redacted to remove conclusions of law and opinions of the Department of Health and Human Services … . Newman v Mount Sinai Med. Ctr., Inc., 2022 NY Slip Op 03327, First Dept 5-19-22

Practice Point: Here plaintiff was allegedly sexually assaulted by a doctor who pled guilty to assaulting other patients. Plaintiff sued the hospital which employed the doctor under a negligent hiring and retention theory. The names of the other assaulted patients were not protected by the physician-patient privilege. Party statements were not protected by the quality assurance privilege. And plaintiff was entitled to the names of the doctor’s coworkers.

 

, , ,

BOTH THE WIFE AND THE JUDGE WERE AWARE OF THE HUSBAND’S MENTAL ILLNESS IN THIS DIVORCE ACTION IN WHICH THE HUSBAND WAS PRO SE; WHEN THE HUSBAND FAILED TO APPEAR FOR THE INQUEST AN INQUIRY INTO WHETHER A GUARDIAN AD LITEM SHOULD BE APPOINTED SHOULD HAVE BEEN HELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should have conducted an inquiry into whether a guardian ad litem should be appointed for the husband in this divorce action. The husband did not appear at the inquest and both the wife and the judge were aware of the husband’s significant mental illness:

Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. Indeed, at the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203 …). Because there was no inquiry, the judgment must be vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity … . Richard v Buck, 2022 NY Slip Op 03335, First Dept 5-19-22

Practice Point: Here both the wife and the judge in this divorce action were aware of the husband’s mental illness. When the husband, who was representing himself, did not appear at the inquest, an inquiry into whether a guardian ad litem should be appointed should have been made.

 

WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s motion to change venue should have been denied. Unless a party follows the special procedure in CPLR 511(a) and (b), which requires making a demand on the other party before bringing a motion, a motion to change venue must be brought in the county where the action was started. Here the defendant did not use the special procedure and brought the motion to change venue in the county where defendant sought to move the proceedings. That was the wrong county for the motion:

This Court has stated that “[w]here . . . a motion to change venue . . . is made in the ‘wrong county’ and timely objection is raised to the improper venue of the motion itself, Special Term should deny the motion” … . Contrary to the defendant’s contention, neither CPLR 501 nor CPLR 511(b) provided a basis for it to notice the motion in Nassau County. Allen v Morningside Acquisition I, LLC, 2022 NY Slip Op 03219, Second Dept 5-18-22

Practice Point: Here the party made a motion to change venue in the county to which the party wanted venue changed. That was deemed the “wrong county” and the motion was dismissed because the party did not first use the special procedure in CPLR 511 (a) an (b) which requires making a demand on the other party before bringing the motion.

 

,

​ WHEN THE FAILURE TO PRESENT FACTS IN A PRIOR MOTION IS NOT JUSTIFIED, THE SECOND MOTION DOES NOT FIT THE CRITERIA FOR A MOTION TO RENEW OR AN ALLOWABLE SUCCESSIVE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion in this foreclosure action did not fit the criteria for a motion to renew or an allowable successive summary judgment motion. The judgment of foreclosure should not have been granted;

“When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” … . Here, the plaintiff failed to provide any justification for its failure to present the new evidence supporting its renewal motion as part of its prior motion.

Even considered as a successive motion for summary judgment, such a motion “should not be entertained in the absence of good cause, such as a showing of newly discovered evidence” … . Wells Fargo Bank, N.A. v Osias, 2022 NY Slip Op 03275, Second Dept 5-18-22

Practice Point: Attempting to bring a second motion which includes “new” facts, without a reasonable justification for leaving them out of the first motion, does not fit the criteria for a motion to renew or an allowable successive summary judgment motion.

 

,

PETITIONER DEMONSTRATED A GOOD FAITH EFFORT TO TIMELY FILE AND SERVE HIS OPPOSITION PAPERS AND DEMONSTRATED A POTENTIALLY MERITORIOUS CAUSE OF ACTION; SUPREME COURT HAD REFUSED TO CONSIDER THE OPPOSITION PAPERS BEFORE ISSUING ITS ORDER DISMISSING THE PETITION; THE ORDER SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s motion to vacate an order dismissing the petition issued after Supreme Court refused to consider petitioner’s opposition papers should have been granted. Petitioner had made a good faith effort to timely file and serve the papers and demonstrated a potentially meritorious cause of action:

The petitioner, who had until July 13, 2018, to submit opposition papers to the respondents’ motion, filed pro se opposition papers with the court on July 13, 2018. He failed, however, to properly serve the respondents with a copy of the opposition papers, or to provide the court with proper proof of service. Nonetheless, the petitioner did file with the court a defective affidavit of service, in which dates of service were blank and which was neither signed nor notarized. Moreover, a copy of the opposition papers that the petitioner had emailed to the respondents was later discovered in the “junk” email folder of the respondents’ counsel. “Clearly, the [petitioner] made a good faith, albeit unsuccessful, attempt to timely . . . respond to the motion,” and the court “should have considered the absence of any evidence that the [petitioner’s] default was intentional, made in bad faith, or with an intent to abandon the action” … .

… [T]he petitioner’s arguments in support of the amended petition demonstrate a potentially meritorious cause of action … . Lastly, the respondents have “neither alleged nor established that [they] would be prejudiced by vacating the default and hearing the matter on the merits” … . Matter of Brennan v County of Rockland, 2022 NY Slip Op 03240, Second Dept 5-16-22

Practice Point: Here petitioner’s good faith effort to timely file and serve his opposition papers demonstrated he did not intend to abandon the action. Supreme Court should not have refused to consider his opposition papers before issuing its order dismissing the petition. The order should have been vacated.

 

, ,

ALTHOUGH A FORECLOSURE ACTION USUALLY ACCELERATES THE DEBT AND STARTS THE STATUTE OF LIMITATIONS CLOCK, HERE THE DEFENDANTS-BORROWERS DID NOT DEMONSTRATE THAT THE 2009 FORECLOSURE ACTION SOUGHT THE ENTIRE AMOUNT DUE (THE 2009 COMPLAINT WAS NOT SUBMITTED); THEREFORE THE DEFENDANTS DID NOT DEMONSTRATE THE INSTANT ACTION IS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants-borrowers in this foreclosure action did not demonstrate the debt was accelerated by the 2009 foreclosure action. Therefore the complaint in the instant action should not have been dismissed as untimely:

… [T]he defendants failed to demonstrate that the debt was validly accelerated by the commencement of the 2009 action. In support of their respective motions, the defendants submitted only the summons with notice from the 2009 action, which did contain a statement that BAC sought “payment of the full balance due,” and a printout of the WebCivil Supreme-Case Detail related to the instant action … . Since the defendants did not submit the complaint or the notice of pendency filed in the 2009 action, it cannot be determined whether those documents elected to accelerate the mortgage loan … . GSR Mtge. Loan Trust v Epstein, 2022 NY Slip Op 03232, Second Dept 5-18-22

Practice Point: To demonstrate that a prior foreclosure action accelerated the debt and thereby started the statute of limitations clock, proof that the prior action called for payment of the entire debt must be submitted. Here the defendants-borrowers did not submit the 2009 foreclosure complaint and therefore did not prove the debt was accelerated by the 2009 foreclosure action.

 

,

A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION FOR PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined sanctioning plaintiff’s attorney for failing to provide discovery, rather than dismissal of the complaint, was the best way to handle plaintiff’s inaction:

… [T]he plaintiff’s attorneys failed to comply with the defendants’ demands for a bill of particulars and discovery, did not object to those demands, and did not respond in any way to follow-up communications from the defendants’ attorneys until opposition to the motions was filed. Moreover, in response to the motions, the plaintiff’s attorneys failed to articulate any excuse for this series of failures … .

Notwithstanding this dereliction of responsibility, at the time the defendants moved … to dismiss the complaint insofar as asserted against each of them, the plaintiff was not in violation of any court-ordered deadlines … . In fact, the defendants also both moved … to compel the plaintiff to comply with their respective discovery demands by a date certain. And … not long after the defendants’ motions were filed, the plaintiff began to produce the requested materials, albeit with some alleged deficiencies.

Under these circumstances, we are of the view that reinstatement of the complaint conditioned upon the payment of a penalty by the plaintiffs’ trial counsel personally to both defendants would be more appropriate than the outright denial of the plaintiff’s right to a day in court … . Cook v SI Care Ctr., 2022 NY Slip Op 03225, Second Dept 5-18-22

Practice Point: Here a monetary penalty imposed personally upon plaintiff’s attorney, as opposed to dismissal of the complaint, was deemed the appropriate penalty for plaintiff’s failure to provide discovery.

 

,

ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint because there were no “extraordinary circumstances:”

The Supreme Court erred … in, sua sponte, directing dismissal of the complaint … . “‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . Here, although the plaintiff’s submissions were insufficient to demonstrate his entitlement to a default judgment, no extraordinary circumstances existed to warrant dismissal of the complaint … . Binder v Tolou Realty Assoc., Inc., 2022 NY Slip Op 03223, Second Dept 5-18-22

Practice Point: Absent so-called “extraordinary circumstances.” a judge does not have the authority to, sua sponte, dismiss a complaint. Here plaintiff’s evidence was not sufficient to support a default judgment, but that insufficiency did not justify dismissing the complaint.

 

NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER A BAVARIAN STEM DONOR REGISTRY INVOLVED IN DECEDENT’S PHYSICIANS’ SEARCH FOR A BONE-MARROW MATCH TO TREAT LEUKEMIA (FIRST DEPT).

The First Department, reversing Supreme Court, determined New York did not have jurisdiction over BSB, a Bavarian stem donor registry:

BSB was contacted through a chain of interactions between donor registries that began with decedent’s New York physicians reaching out to the National Marrow Donor Program in Minnesota to find a match for decedent so that she could undergo a bone marrow transplant to treat her leukemia. When no match was found there, the search was expanded, including to Republic of German’s central registry, and ultimately a donor was located in the BSB registry. BSB did not engage in a regular course of conduct, nor did it purposefully avail itself of the privilege of conducting activities within New York State … . Furthermore, BSB, a 20-employee not-for-profit organization, was reimbursed with a set sum by a German entity for providing the donation to decedent’s transplant center’s courier in Germany, and reimbursement was not contingent on decedent’s ability to pay, insurance, or the like. There is no evidence that BSB derived substantial revenue from the transaction or from New York, where it has no offices, employees, agents, marketing, registrations, or presence … . Even if the long-arm statute applied, BSB does not have the minimum contacts necessary such that it should have reasonably expected to be brought into court here … .Aloisio v New York-Presbyt./Weill Cornell Med. Ctr., 2022 NY Slip Op 03205, First Dept 5-17-22

Practice Point: A Bavarian stem donor registry did not have sufficient contacts with New York to allow New York to exercise long-arm jurisdiction over the registry. The registry played a role in decedent’s physicians’ search for a bone-marrow match to treat decedent’s leukemia. The registry had no presence in New York and did not purposely conduct activities in New York. Even if the long-arm statute applied, the registry did not have the minimum contacts with New York required under a due-process analysis.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy