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A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action:

“CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action” … . “Since CPLR 3216 is a legislative creation and not part of a court’s inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint” … .

Here, the two 90-day notices served by the defendant and an order issued by the court were all defective in that they did not state that the plaintiff’s failure to comply with the demands contained therein would serve as a basis for a motion to dismiss the complaint for failure to prosecute … . Accordingly, the Supreme Court should have denied the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint. Terryn v Rubin, 2025 NY Slip Op 04741, Second Dept 8-20-25

Practice Point: A ninety-day demand which fails to state dismissal of the action will result from a failure to comply is defective and has no effect.

 

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THE PETITION SEEKING REVIEW OF THE BOARD OF ELECTIONS’ DECISION TO PURCHASE NEW VOTING MACHINES WHICH OPERATE BY SCANNING A BAR CODE SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PETITIONER, COMMON CAUSE NEW YORK, DID NOT DEMONSTRATE AN INJURY-IN-FACT; COMMON CAUSE ARGUED THE USE OF A BAR CODE WHICH IS SCANNED BY THE MACHINE WILL IMPEDE VERIFICATION OF THE VOTING BALLOTS; THERE WAS A TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the petitioner, Common Cause New York, had standing to contest the State Board of Elections’ (the Board’s) approval of the use of a new voting machine on the ground the machine’s mechanism for counting votes (using a bar code) impeded the right to independently verify the voting ballots. The majority held the petitioner met the “injury-in-fact” requirement. The dissenters disagreed. Although the writ of mandamus to compel was not the proper mechanism because a discretionary, as opposed to a ministerial, act was at issue, the petition was converted to a writ of mandamus to review:

The Board … posits that petitioners cannot establish the existence of an injury that differs from the public at large. We do not believe that the facts of this case warrant “an overly restrictive analysis of [that] requirement” … . Indeed, that requirement is tempered by the principle “that standing is not to be denied simply because many people suffer the same injury,” as doing so would insulate the “most injurious and widespread Government actions” from scrutiny … . Within that context, petitioners have alleged a particularized harm flowing from the approval of the ExpressVote XL [voting machine] and, although it likely affects numerous high-propensity voters … , it is sufficiently “different in kind or degree from that of the public at large” to permit standing … . * * *

We may consider the modern view of a petitioner’s pleading requirements in a CPLR article 78 proceeding, which merely require that the petitioner ” ‘set forth his [or her] facts and his [or her] prayer for relief and such relief as is proper may be given to him [or her]’ ” … . Accordingly, “notwithstanding the nomenclature of [petitioners’] application,” … we find that their request can be readily construed as one for mandamus to review, which asks “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” … . Matter of Common Cause N.Y. v Kosinski, 2025 NY Slip Op 04690, Third Dept 8-14-25

Practice Point: Here the petition brought in the form of a writ of mandamus to compel was deemed improper because the underlying act, the purchase of voting machines, is discretionary, not ministerial. But the court had the authority to consider the petition as a writ of mandamus to review, which was the appropriate mechanism.

 

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OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST THEORY” WHICH, UNDER THE NYS EQUAL ACCESS TO JUSTICE ACT (EAJA), ALLOWS THE RECOVERY OF ATTORNEY’S FEES BY A PARTY WHO INSTIGATES LITIGATION AGAINST THE STATE AND THE STATE VOLUNTARILY GRANTS THE SOUGHT RELIEF WITHOUT FUTHER LITIGATION; THE “CATALYST THEORY” APPLIES ONLY WHERE THE PARTY “PREVAILS IN WHOLE,” NOT WHERE THE PARTY HAS ONLY “SUBSTANTIALLY PREVAILED” (THIRD DEPT).

The Third Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Aarons, determined petitioner was not precluded from an award of counsel fees because the agency petitioner sued, the Office of Temporary and Disability Housing (OTDA), voluntarily granted the relief petitioner sought without the need for further litigation. In so doing, the Third Department overruled Matter of Clarke v Annucci, 190 AD3d 1245, Third Dept 2021, which rejected the so-called catalyst theory and precluded recovery under the NYS Equal Access to Justice Act (EAJA) when the sued agency voluntarily grants the sought relief after litigation has been started: The “catalyst theory” is now accepted as valid in the Third Department where, as in this case, the party “prevails in whole,” but not where a party has only “substantially prevailed:”

The text of the state EAJA, the legislative record, our collective judicial experience and common sense all lead us to conclude that the Legislature could have rationally determined that parties who receive complete relief from the State after the commencement of litigation have prevailed “in whole” even if the State folds and gives it to them. * * *

… [W]e hold that a party prevails in whole when the party obtains all of the relief sought in a lawsuit against the State — including when that relief is granted voluntarily by the State after the action is commenced — and is thus a prevailing party under the state EAJA as a matter of law (see CPLR 8602 [f]). To the extent Clarke is to the contrary, it should no longer be followed. * * *

… [A]lthough we no longer read the state EAJA to require every prevailing party to obtain judicially sanctioned relief, we do not otherwise address a party “who prevails . . . in substantial part” (CPLR 8602 [f]). Petitioner’s case does not require us to resolve whether the catalyst theory applies where a party has substantially, but not wholly, prevailed. We continue to impose an additional requirement on a substantially prevailing party to show a win against the State on the merits of one or more “issues” in litigation, and a corresponding win by the State on the merits of one or more “separate issues” (CPLR 8602 [f] …). Therefore, a party claiming to have prevailed in substantial part must still demonstrate that relief was obtained on the merits in an outcome that changes the legal relationship between the party and the State — for example, a judgment on the merits or a settlement agreement. Matter of Markey v Tietz, 2025 NY Slip Op 04689, Third Dept 8-14-25

Practice Point: If a party starts litigation against the state and the state voluntarily grants the sought relief, the party is entitled to attorney’s fees under the NYS Equal Access to Justice Act (EAJA).

 

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THERE WAS NO EVIDENCE MOTHER WAS SERVED WITH THE ORDER OF PROTECTION PROHIBITING THE FATHER’S CONTACT WITH HER AND THE CHILDREN; THE PROOF IN THIS CHILD NEGLECT PROCEEDING AGAINST MOTHER DID NOT MATCH THE ALLEGATIONS IN THE PETITION; THE JUDGE EFFECTIVELY AMENDED THE PETITION BY IMPROPERLY CONFORMING THE PETITION TO SERIOUSLY CONFLICTING AND CONTRADICTORY PROOF; MOTHER WAS NEVER GIVEN THE OPPORTUNITY ADDRESS THE “AMENDED” PETITION; NEGLECT FINDING VACATED (FIRST DEPT).

The First Department, vacating the neglect finding against mother, in a full-fledged opinion by Justice Rosada, determined there was insufficient support in the record for the judge’s resolution of conflicting evidence, which amounted to an amendment of the petition to conform to the proof. Mother was never given the opportunity to address the judge’s sua sponte amendment of the petition, a violation of due process. In addition, there was no proof mother was served with an order of protection prohibiting father’s contact with the children (it was alleged mother left the children in father’s care when she was hospitalized). The facts of the case are too complex to fairly summarize here:

… ACS [Administration for Children’s Services] failed to adduce any proof of actual or imminent danger of physical, emotional, or mental impairment to the children in remaining in a home with the father and M.H. [paternal grandmother] during the mother’s brief hospitalization … . * * *

… Family Court unduly relied upon the contradictory testimony of Trazile [CPS worker] and M.H. in rendering its determination that respondent neglected the children. While credibility determinations of Family Court are normally accorded due deference … , the determination here “lacks a sound and substantial evidentiary basis,” and the court should have dismissed the petition (… see also Family Ct Act § 1051[c]). The court credited the testimonies of both Trazile and M.H., which together presented three markedly different and contradictory accounts of how the children came to be in M.H.’s care. Significantly, all three accounts are departures from the allegations set forth in the amended petition.

While the court is empowered sua sponte to conform the pleadings to the proof, as it arguably did here via its restatement of the allegations in its written decision, Family Ct Act § 1051(b) requires that in such cases, the respondent be given reasonable time to prepare to answer the amended allegations, which was not done here … . “Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition” … . Matter of Kaius A. v Abigail H., 2025 NY Slip Op 04692, First Dept 8-14-25

Practice Point: If Family Court is confronted with internally inconsistent and contradictory proof which does not match the allegations in the neglect petition, the petition should be dismissed.

Practice Point: If mother is accused of violating an order of protection, there must be proof she was served with the order.

Practice Point: Although Family Court has the power to sua sponte conform a neglect petition to the proof by issuing findings of fact, due process requites that mother be given the opportunity to address the “new” allegations in the “amended” petition.

 

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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services’ [if] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the dismissal of father’s parental access petition for failure to prosecute was not warranted. Father lived in Florida, had made appearances virtually, and, although he did not appear at the last court date, his attorney was present:

… [F]ather commenced this proceeding pursuant to Family Court Act article 6 for parental access with the child. The Family Court directed the parties to cooperate with a clinical assessment program in New York so as to aid the court in making a parental access determination. However, the father, who lived in Florida, alleged that he was financially unable to participate in the program and to travel to New York. He also informed the court that he was initially seeking to have only telephone contact with the child. Following several virtual appearances by the father, the court advised the father that he would no longer be permitted to appear virtually, citing the father’s disruptions during his prior virtual appearances. Thereafter, prior to the next scheduled court appearance, the father made “multiple” requests to be able to appear virtually but the court denied his requests. While the father was not present at the next scheduled court appearance, his attorney was present. … [T]he court dismissed the petition without prejudice for failure to prosecute. …

“[D]ismissal is a harsh remedy which ought not to be imposed without the utmost caution” … . A petition should not be dismissed for failure to prosecute where there is no indication of intentional default or willful abandonment … . Here, inasmuch as the father made several appearances in the proceeding virtually and appeared through counsel during the latest scheduled court appearance, the record does not reflect that the father willfully abandoned his parental access petition … . Matter of Lopez v Estrella, 2025 NY Slip Op 04649, Second Dept 8-13-25

Practice Point: Dismissal of a parental access petition for failure to prosecute is a harsh remedy which was not justified in this case. Father lived in Florida and appeared virtually. His requests to continue to appear virtually were denied. He was seeking only telephonic contact with the child. There was no indication of intentional default or willful abandonment of the petition.

 

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

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

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

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

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

 

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

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

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

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

 

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A FOREIGN DEFAULT JUDGMENT MAY BE ACCORDED FULL FAITH AND CREDIT IN NEW YORK BY A PLENARY ACTION OR A MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT; THERE IS NO NEED FOR PERSONAL JURISDICTION OVER THE DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Braithwaite Nelson, determined New York need not have personal jurisdiction over a defendant to have a North Carolina money judgment recognized in New York. After obtaining a default judgment in North Carolina, the plaintiff moved for summary judgment in lieu of complaint pursuant to CPLR 3213:

To facilitate fulfilling this constitutional obligation and to assist in the enforcement of judgments entitled to full faith and credit, the New York Legislature adopted the Uniform Enforcement of Foreign Judgments Act (hereinafter the Foreign Judgments Act) (CPLR art 54), which provides a simple procedure by which a judgment creditor may file an authenticated copy of a judgment rendered by a court entitled to full faith and credit in New York … . Once filed, and after certain other conditions have been met … , the foreign judgment shall be treated in the same manner as a judgment of New York and may be enforced in like manner as a judgment rendered in New York … . There is no explicit requirement in the Foreign Judgments Act that New York have personal jurisdiction over the judgment debtor before the foreign judgment may be filed and treated as a New York judgment.

A judgment that was obtained by a default in appearance, however, is not eligible for the streamlined process afforded by the Foreign Judgments Act … . Where a judgment was entered on a default in appearance, full faith and credit may be accorded by the commencement of a plenary action or by a motion for summary judgment in lieu of complaint … . * * *

In seeking recognition and enforcement of an out-of-state judgment entitled to full faith and credit, “‘the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the [out-of-state] money judgment and converting it into a New York judgment'” … . Here, the defendant does not contest the jurisdiction of the North Carolina court or otherwise contend that he was denied due process in that court. Cadlerock Joint Venture, L.P. v Simms, 2025 NY Slip Op 04541, Second Dept 8-6-25

Practice Point: A foreign default judgment may be accorded full faith and credit in New York by a plenary action or a motion for summary judgment in lieu of complaint. There is no need for personal jurisdiction over the defendant.

 

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IF THE STATUTE OF LIMITATIONS RUNS OUT ON A SATURDAY, PLAINTIFF HAS UNTIL THE FOLLOWING MONDAY TO COMMENCE THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dental malpractice action was timely commenced. The last day of the statute of limitations fell on a Saturday and General Construction Law section 25-a (1) provided an extension until the following Monday:

General Construction Law § 25-a(1) provides that when the period of time within which an act is required to be done ends on a Saturday, the act may be done on the next succeeding business day. A dental malpractice action must be commenced “within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a). In support of their motion, the defendants established that the plaintiff was last treated … on August 1, 2017. Although two years and six months from that date is February 1, 2020, we take judicial notice of the fact that February 1, 2020, was a Saturday … . Thus, pursuant to General Construction Law § 25-a(1), the plaintiff had until Monday, February 3, 2020, to commence this action … . As this action was commenced on February 2, 2020, it was timely commenced. Chen v New York Hotel Trades Counsel Health Ctr., Inc., 2025 NY Slip Op 04466, Second Dept 7-30-25

Practice Point: Pursuant to the General Construction Law, if the statute of limitations runs out on a Saturday the action can be timely commenced on the following Monday.

 

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