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FILING A REQUEST FOR JUDICIAL INTERVENTION CONSTITUTED TAKING PROCEEDINGS FOR THE ENTRY OF JUDGMENT WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed as abandoned on the ground plaintiff failed to take action within one year of defendant’s default. In fact plaintiff filed a request for judicial intervention which constituted taking “proceedings for the entry of judgment within one year after the default:”

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” To avoid dismissal pursuant to CPLR 3215(c), “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default” … . “Rather, ‘as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal'” … .

Here, the plaintiff demonstrated that, within one year after the defendant’s default, the plaintiff filed a request for judicial intervention that sought a foreclosure settlement conference as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . U.S. Bank N.A. v Newson, 2025 NY Slip Op 04269, Second Dept 7-23-25

Practice Point: The CPLR does not require a plaintiff to obtain a default judgment within a year of the default to preclude dismissal. Plaintiff need only take some action which indicates it does not intend to abandon the action. Here the filing of a request for judicial intervention was sufficient.

 

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PLAINTIFF’S FAILURE TO COMPLY WITH A STATUS CONFERENCE ORDER REQUIRING THE FILING OF AN APPLICATION FOR AN ORDER OF REFERENCE DID NOT JUSTIFY THE SUA SPONTE DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s failure to comply with status conference order to file an application for an order of reference by a date certain did not warrant a sua sponte 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, the plaintiff’s failure to comply with the status conference order directing it to file an application for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint” … . … Supreme Court should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a) to vacate the dismissal order and to restore the action to the active calendar … . Federal Natl. Mtge. Assn. v Davis, 2025 NY Slip Op 04232, Second Dept 7-23-25

Practice Point: Failure to comply with a status conference order to apply for an order of reference by a certain date does not justify a judge’s sua sponte dismissal of the complaint.

 

THE ADULT SURVIVORS ACT, CPLR SECTION 214-J, REVIVES AN OTHERWISE TIME-BARRED ACTION COMMENCED IN 2005 AND DISMISSED FOR LACK OF PERSONAL JURISDICTION IN 2009 (SECOND DEPT

The Second Department, reversing Supreme Court, determined that the Adult Survivors Act (ASA), which is CPLR section 214-j, may be applied to revive an otherwise time-barred action commenced in 2005 and dismissed for lack of personal jurisdiction in 2009. The ASA concerns lawsuits alleging damages for sexual assault:

CPLR 214-j, enacted as part of the ASA and effective May 24, 2022, opened a revival window during which adult victims of sexual abuse could assert civil claims or causes of action against their abusers for acts committed against them when they were 18 years or older that would otherwise be time-barred … . CPLR 214-j provides, inter alia, that “every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense . . . committed against such person who was eighteen years of age or older . . . which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived.” CPLR 214-j further provides that, “[i]n any such claim or action, dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section.” * * *

The plain language of CPLR 214-j provides that it revives “every civil claim or cause of action” alleging the subject conduct “which is barred . . . because the applicable period of limitation has expired” (emphasis added). The use of the word “every” in describing such claims or causes of action imports no limitation and evidences the Legislature’s intent for revival to apply to all claims and causes of action that would otherwise be barred on statute of limitations grounds … . Esposito v Isaac, 2025 NY Slip Op 04231, Second Dept 7-23-25

Practice Point: The Adult Survivors Act (ASA), CPLR 214-j, revives “every civil claim” alleging damages for sexual assault of persons over 18, including an otherwise time-barred action which was dismissed in 2009 for lack of personal jurisdiction.

 

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HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined plaintiff was entitled to compel defendants to accept a second supplemental bill of particulars after plaintiff had surgery on her injured shoulder:

“Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court at any time, but not less than 30 days prior to trial, if it alleges ‘no new cause of action’ or claims no ‘new injury'” (… quoting CPLR 3043[b]). Here, contrary to the defendants’ contention, the plaintiff sought to allege continuing consequences of the injuries suffered to her left shoulder and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Miller v Great Vegetable Farm, Inc., 2025 NY Slip Op 04170, Second Dept 7-16-25

Practice Point: Here plaintiff documented the results of surgery on her injured shoulder in a supplemental bill of particulars. Because the document addressed injuries already alleged to have been caused by the slip and fall, and not new injuries, the document was a supplemental bill of particulars, not an amended bill of particulars. As long as a supplemental bill of particulars is served more than 30 days before trial, leave of court is not required and defendant must accept it.

 

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ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

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HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records kept by the police and prosecutors:

We must … decide whether CPL 160.55 i… encompasses the content that plaintiff seeks to have excluded from trial. After plaintiff entered a guilty plea to disorderly conduct in the criminal action, County Court issued a sealing order pursuant to CPL 160.55, which applies when an action has been terminated by a conviction of certain violations, including disorderly conduct. * * *

A careful comparison of the language used in CPL 160.50 and 160.55 leads us to agree with defendants’ contention that CPL 160.55 does not extend to court records. Under CPL 160.55 (1) (c), once notified of a qualifying violation conviction, the enumerated criminal justice entities must seal “all official records and papers relating to the arrest or prosecution” in their possession. By comparison, CPL 160.50 (1) provides that, when an action has been terminated in favor of the accused, unless the court requires otherwise, “the record of [an] action or proceeding shall be sealed” and notification of such termination and sealing shall be sent by the clerk of the court to the “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” … . Upon receipt thereof, “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency” (CPL 160.50 [1] [c] … . By its plain terms, CPL 160.50 seals official court records pertaining to the arrest and prosecution, whereas CPL 160.55 omits that express sealing … . * * *

We are mindful that the record does not reveal how defendants obtained copies of the indictment and combined plea/sentencing transcript. To the extent defendants obtained these documents from the official court file maintained by County Court, they would not be subject to the sealing order issued pursuant to CPL 160.55. However, if these documents were obtained from the files of “the division of criminal justice services, police agency, or prosecutor’s office” (CPL 160.55 [1] [c]), they would be subject to the sealing order.  … [P]laintiff did not waive the privilege that is afforded to these documents in the event they were obtained from one of the aforementioned law enforcement entities. Given that the record is not sufficiently developed on the issue of how these records were obtained, we must reverse so much of Supreme Court’s order as denied plaintiff’s motion in limine as it pertains to the indictment and plea/sentencing transcript and remit to Supreme Court for further proceedings on the matter. Kokoska v Joe Tahan’s Furniture Liquidation Ctrs., Inc., 2025 NY Slip Op 04130, Third Dept 7-10-25

Practice Point: Pursuant to Criminal Procedure Law section 160.55, a sealing order does not extend to court records, as opposed to records kept by law enforcement and prosecutors. Here there was a question whether the defendants procured the indictment and plea transcript from the court. If so, the sealing order did not apply to them.

 

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IN A CRIMINAL CONTEMPT PROCEEDING BASED UPON AN ACT WHICH WAS NOT COMMITTED IN THE IMMEDIATE VIEW AND PRESENCE OF THE COURT, THE CONTEMPT MOTION MUST BE PERSONALLY SERVED; HERE THERE WAS NO PROOF THE MOTION WAS PROPERLY SERVED, DEPRIVING FAMILY COURT OF JURISDICTION (THIRD DEPT).

The Third Department, reversing Family Court, determined the criminal contempt motion against father for bringing a recording device into court should have been dismissed because there was no proof father was personally served with the motion:

A finding of criminal contempt, as is pertinent here, must be supported by a showing of “[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority” (Judiciary Law § 750 [A] [1]), and proof of guilt must be established beyond a reasonable doubt … . “Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense” (Judiciary Law § 751 [1] …). To this end, a “criminal contempt proceeding requires personal service on the contemnor” … . “A court lacks personal jurisdiction over a respondent who is not properly served with process” and, “[w]hen the requirements for service of process have not been met, it is irrelevant that the respondent may have actually received the documents, because notice received by means other than those authorized by statute does not bring a respondent within the jurisdiction of the court” … .

Family Court acknowledged in its written order that it was unable to summarily hold the father in contempt, as the only direct evidence of his possession of a prohibited recording device was discovered outside of the courtroom by court officers who were not immediately available to testify. As such, personal service of the motion charging the father with contempt was required. Nothing in the record reflects that such service was effectuated. We note that, to the extent that the court’s notice of motion indicates that it was mailed to the father to a Pennsylvania address, there is similarly no affidavit of service/mailing and no receipt of mailing in the record. Matter of Ruoyao P. (Zhechen P.), 2025 NY Slip Op 04065, Third Dept 7-3-25

Practice Point: Consult this decision for the procedural requirements for a motion charging criminal contempt for an act which was not committed in the immediate view and presence of the court. The motion must be personally served in accordance with the CPLR. Failure of proper service deprives the court of jurisdiction.

 

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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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BY SUBMITTING A CLAIM TO THE “SEPTEMBER 11TH VICTIM COMPENSATION FUND” (VCF), PLAINTIFF, WHO ALLEGED HIS PROSTATE CANCER WAS RELATED TO HIS WORK AT THE WORLD TRADE CENTER AFTER SEPTEMBER 11TH, WAIVED HIS RIGHT TO SUE HIS PHYSICIAN FOR AN ALLEGED DELAY IN DIAGNOSIS AND TREATMENT OF THE PROSTATE CANCER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the plaintiff’s submission of a claim to the September 11th Victim Compensation Fund (VCF) precluded his medical malpractice action. Plaintiff submitted the claim to VCF alleging his prostate cancer was related to his work at the World Trade Center after September 11th. Years later, in 2021, plaintiff sued his physician alleging a delay in diagnosing and treating the prostate cancer. Apparently the VCF claim was made close in time to the filing of the lawsuit. By filing the VCF claim, plaintiff waived the right to bring a civil lawsuit based on the prostate cancer:

“… [T]he Air Stabilization Act * * * created the [VCF]  . . . to provide no-fault compensation to victims who were injured in the attacks and to personal representatives of victims killed in the attacks … ; and provided an election of remedies —all claimants who filed with the [VCF] waived the right to sue for injuries resulting from the attacks except for collateral benefits” … .

The Air Stabilization Act was amended by the Aviation and Transportation Security Act … . * * *  The waiver provision now provides:

“Upon the submission of a claim under this title, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal. Brennan v MacDonald, 2025 NY Slip Op 03994, Second Dept 7-2-25

Practice Point: Submitting a claim to the September 11th Victim Compensation Fund (VCF) waives the right to bring a civil suit based on the subject of the claim. Here plaintiff alleged his prostate cancer was related to work at the World Trade Center. Because he submitted a VCF claim for the prostate cancer, he cannot sue his physician for medical malpractice alleging a delay in diagnosis and treatment.

 

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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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