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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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CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT). ​

The Second Department, in a comprehensive full-fledged opinion by Justice Golia, in a matter of first impression, determined CPLR 7003(1), which requires a judge to forfeit $1000 when a petitioner’s request for habeas corpus relief is improperly denied, is unconstitutional. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine:

… [W]hile CPLR 7003(c) is not a direct diminution of judicial compensation, the language of that provision explicitly “targets judges for disadvantageous treatment,” as it provides that a $1,000 forfeiture be paid personally by a judge who does not issue a writ of habeas corpus where one should have been issued … . CPLR 7003(c) is, thus, an indirect diminution of the salary of judges within the meaning of the Compensation Clause of the New York State Constitution. Accordingly, the Supreme Court properly determined that “[b]y its nature, CPLR 7003(c) singles out judges for financially adverse treatment because of their exercise of their judicial functions and does so in a manner that discriminates based on how they decide an application for a writ. To impose a forfeiture on a judge based on which way they decide an application undermines the core objective of the [C]ompensation [C]lause of protecting judicial independence.” * * *

By imposing a penalty on a judge who refuses a petitioner’s request for habeas corpus [*14]relief where such relief should have been issued, the Legislature, through CPLR 7003(c), is interfering with judicial functions by incentivizing one specific outcome, namely, issuance of the writ, because a judge only faces a penalty if he or she refuses to issue a writ. Such influence is impermissible, as “‘the mere existence of the power to interfere with or to influence the exercise of judicial functions contravenes the fundamental principles of separation of powers embodied in our State constitution and cannot be sustained'” … . Poltorak v Clarke, 2025 NY Slip Op 04496, Second Dept 7-30-25

Practice Point: CPLR 7003(1) requires a judge to forfeit $1000 for an improper denial of habeas corpus relief. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine.

 

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THE JUDGE SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFFS’ COUNSEL TO INFORM DEFENDANTS’ FORMER EMPLOYEES THAT COUNSEL’S INTERESTS ARE ADVERSE TO THEIRS AND TO RECOMMEND THE FORMER EMPLOYEES RETAIN COUNSEL BEFORE ANY DISCUSSION WITH PLAINTIFFS’ COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this action alleging sexual abuse of the plaintiffs in the steam rooms of defendants’ fitness clubs should not have issued a protective order concerning interviews of defendants’ former employees by plaintiffs’ counsel. The order precluded plaintiffs’ counsel from communicating with any former employees without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s interests and recommending that the former employees retain counsel before continuing the discussion:

Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3103 for an order precluding the plaintiffs’ counsel from communicating with any former employees of Equinox without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s clients’ interests and recommending that the former employees retain counsel before continuing the discussion. The defendants failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order … . The defendants’ allegations of prejudice in the absence of a protective order were both conclusory and speculative … . G.B. v Equinox Holdings, Inc., 2025 NY Slip Op 04452, Second Dept 7-30-25

Practice Point: Here a protective order restricting communications between plaintiffs’ counsel and defendants’ former employees was reversed because the need for the order was not adequately demonstrated by conclusory and speculative allegations.

 

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THE ZONING BOARD’S DENIAL OF A STREET FRONTAGE VARIANCE WAS NOT SUPPORTED BY SPECIFIC FACTUAL FINDINGS MAKING COURT-REVIEW IMPOSSIBLE; MATTER REMITTED TO THE BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town Zoning Board of Appeals, determined the Board must set forth its reasons for denying a variance. Without specific factual support for the denial in the record, court review is impossible:

… [T]he Board failed to sufficiently set forth the specific factual support in the record, or the specific findings, upon which it relied in denying the requested street frontage variance … . Although at the hearing, certain Board members put on the record their individual grounds for denying a street frontage variance, the Board granted the request for an area variance for the same proposed lot, approving the three-lot subdivision. Thus, the record contains inconsistencies between the written determination and the hearing transcript with respect to the grounds for the Board’s determination.

When the Supreme Court, in effect, affirmed the Board’s denial of a street frontage variance, the court improperly “surmised or speculated as to how or why the board reached its determination” … . Accordingly, absent adequate grounds to support the challenged determination, the judgment must be reversed and the matter remitted to the Board so that it may set forth factual findings in proper form … . Matter of Mancuso v Zoning Bd. of Appeals of the Town of Mount Pleasant, 2025 NY Slip Op 04479, Second Dept 7-30-25

Practice Point: A Zoning Board of Appeals must support its ruling with a specific factual record to allow court review. If the record does not support the ruling, the court is forced to speculate. Here the matter was remitted to the Board to make factual findings.​

 

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SHANE, A CO-DEFENDANT WITH HIS PARENTS WITH WHOM HE LIVED, WAS NOT DISQUALIFIED FROM ACCEPTING SERVICE ON BEHALF OF HIS PARENTS DUE TO A CONFLICT OF INTEREST; THE ACTION AGAINST THE PARENTS SHOULD NOT HAVE BEEN VACATED BASED ON A LACK OF PERSONAL JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the evidence did not support the finding that Shane, who was living with his parents when he was served with process on behalf of his parents, was not a person of suitable age and discretion due to a conflict of interest with his parents. Shane was a co-defendant along with his parents. The parents were granted vacatur under CPLR 5015(a)(4) on the ground the court lacked personal jurisdiction over them:

“A person would not be considered a person of suitable age and discretion where their interests in the proceeding were sufficiently adverse to the party for whom they were accepting service” … . Furthermore, “[g]ood faith is implicit in the spirit of the statutory scheme. If a plaintiff knows, or should know, that service according to [CPLR 308 (2)] will not afford notice, then, by definition, it is not reasonably calculated to afford notice, and is constitutionally infirm” … .

… [T]here is no evidence in the record to support a determination that plaintiff was aware, or should have been aware, of any alleged conflict between Shane and the parent defendants. We cannot conclude that Shane had a conflict of interest with the parent defendants and, therefore, was not a person of suitable age and discretion, merely because he is a codefendant … . Moreover, on the record before us, we note that this is not a case where plaintiff can be charged with any knowledge that service upon Shane with respect to his parents might be deficient … . Thus, based on the evidence adduced at the traverse hearing, we conclude that plaintiff established that Shane was a person of suitable age and discretion for purposes of serving his parents … . Seebald v Spoonley, 2025 NY Slip Op 04324, Fourth Dept 7-25-25

Practice Point: The fact that a person is a co-defendant does not render that person unqualified to accept service on behalf of other defendants. Here the person served, Shane, a co-defendant in the action, accepted service on behalf of his parents with whom he lived. It was not demonstrated at the traverse hearing that Shane had interests sufficiently adverse to those of his parents to render the service on the parents constitutionally infirm. There was no evidence the plaintiff was aware service upon Shane would be deficient with respect to service on the parents.

 

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THE PURPOSE AND REACH OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) EXPLAINED IN SOME DETAIL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that the Foreclosure Abuse Prevention Act (FAPA) applied and required the dismissal of the complaint on statute of limitations grounds:

… FAPA’s enactment amended numerous CPLR provisions as well as other statutes, including: CPLR 213 (4) (a), stating that “[i]n any action [upon a note or mortgage], if the statute of limitations is raised as a defense, and if that defense is based on a claim that the [note] at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated”; CPLR 203 (h), stating that “[o]nce a cause of action upon a [note or mortgage] has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim”; CPLR 3217 (e), stating that “[i]n any action on [a note or mortgage], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim”; and CPLR 205-a (a), prohibiting the six-month period savings provision within which a plaintiff may recommence an action if the original action was terminated due to any form of neglect.

Having determined that FAPA applies to this foreclosure action and turning to the merits underlying defendant’s motion for summary judgment based upon the statute of limitations, plaintiff is estopped from asserting that the mortgage debt was not validly accelerated pursuant to CPLR 213 (4), since the 2015 action was dismissed for plaintiff’s failure to prosecute and was not dismissed based upon an expressed judicial determination that the debt was not validly accelerated … . HSBC Bank USA, N.A. v Vesely, 2025 NY Slip Op 04279, Third Dept 7-24-25

Practice Point: Consult this opinion for an in-depth discussion of the purpose and reach of the Foreclosure Abuse Prevention Act (FAPA).

 

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THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in the presence of the 14-month-old child. By all accounts mother was “a good mother” and “very strong [and] hard-working.” Yet over the course of six months mother was subjected to 15 announced and unannounced home visits by an ACS caseworker who searched every room, the contents of the refrigerator, and inspected the child’s body:

As noted by the Sapphire W. Court [237 AD3d 41, Second Dept, 2-5-25] “in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with greater participation in abuse or neglect proceedings, while also expand[ing] the options available to Family Court judges when craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings . . . . Among other things, the legislation clarifie[d] the language of Family Court Act § 1017 by referring specifically to non-respondent parent, relative or suitable person as potential resources a court may consider after determining that a child must be removed from his or her home” … .

We agree with the sound reasoning in Matter of Sapphire W. and hold that Family Court Act §§ 1017 and 1027(d) do not permit supervision of a nonrespondent parent who has been caring for the child, in the absence of a court-ordered removal of the child. We further concur with the Second Department that, “[c]onsidering the intrusive and potentially traumatic impact of ACS involvement in a family’s life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored” … . Matter of R.A. (A.R.), 2025 NY Slip Op 04295, First Dept 7-24-25

Practice Point: The Administration for Children’s Services’ (ACS’) authority to supervise a nonrespondent mother who was abused by respondent father in the child’s presence is only triggered if and when the court orders the removal of the child from the home, not the case here. All agreed mother was “a good mother,” yet she was subjected to 15 announced and unannounced searches of her home and inspections of her child over the course of six months.

 

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