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PLAINTIFF’S COUNSELS “AFFIRMATION OF GOOD FAITH” WAS DEFICIENT; PLAINTIFF’S MOTION TO STRIKE AN AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike an affirmative defense was not supported by a sufficient “affirmation of good faith” from plaintiff’s counsel:

The court should have denied plaintiff’s motion to strike the answer because the affirmation of good faith from plaintiff’s counsel failed to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.20-f(b). Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition. Counsel failed to attest that he conducted an in-person or telephonic conference as required by 22 NYCRR 202.20-f(b) … . While counsel’s affirmation in support of the motion provides additional explanations, such as that “[they] made an effort” to contact defendants’ counsel and that “[their] office made [an] effort to confirm the deposition,” the affirmation fails to specify the mode of communications, by whom or to whom the communications were made, whether any messages were left, and whether counsel followed up with the attempt to confirm the deposition (see 22 NYCRR 202.7[a], [c] … . Servan v ES Bldrs. Group LLC, 2025 NY Slip Op 05184, First Dept 9-25-25

Practice Point: Consult this decision for the required contents of plaintiff’s counsel’s “affirmation of good faith” detailing efforts to resolve the issues with defendant’s counsel before moving to strike an affirmative defense. Here the affirmation was deemed deficient, requiring denial of the motion.

 

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THE ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE WERE NOT INTERTWINED; THE VERDICT FINDING DEFENDANT NEGLIGENT BUT THAT THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY SHOULD NOT HAVE BEEN SET ASIDE; IN RESPONSE TO A JURY NOTE, THE JUDGE PROPERLY TOLD THEM THEY COULD FIND THAT THE ACCIDENT DID NOT HAPPEN (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the motion to set aside the verdict finding the defendant negligent but that the negligence was not the proximate cause of the accident should not have been set aside. The plaintiff alleged repair to the steering mechanism of his van was negligently done, that he suddenly lost the ability to steer the van and it crashed into a concrete barrier which was parallel to the roadway. The evidence was such that the jury could have found the accident did not happen in the way alleged by the plaintiff. The damage to the van did not appear to be consistent with the accident as described by plaintiff. When the jury sent a note asking whether they could find that the accident didn’t happen, the trial judge properly told them they could so find:

The narrow question we must address to determine this appeal is whether the Supreme Court properly, in effect, granted those branches of the plaintiff’s motion which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendants were negligent, found that such negligence was not a substantial factor in causing injury to the plaintiff … . We answer this question in the negative, holding that the court erred by, in effect, granting those branches of the plaintiff’s motion where, as here, issues of negligence and proximate cause are not inextricably intertwined as a result of there being a rational view of the evidence that the plaintiff’s accident did not occur as claimed. Additionally, this appeal provides the opportunity to state our view that, in a personal injury action where there were questions about whether the alleged injury-producing event actually occurred as claimed by the plaintiff here, it was not error for the court to respond to a jury note by instructing that the jury could consider whether the alleged accident occurred. * * *

If, as the Supreme Court concluded in this instance, the jury’s deliberation involved an uncomplicated determination of whether the defendants had negligently installed the pitman arm of the plaintiff’s van, which, in turn, resulted in the plaintiff’s loss of steering and the accident as described, then the jury’s finding of negligence without a finding of proximate cause would be inconsistent. But the trial evidence was not so uncomplicated as to be subject to only one view of the events. Here, viewing the evidence in the light most favorable to the defendants, as we must in these instances, there was a valid line of reasoning and permissible inferences upon which the jury could parse the alleged negligent repair from the alleged proximate cause and determine that while the defendants were negligent, they were not a proximate cause of the plaintiff’s claimed accident … . Krohn v Schultz Ford Lincoln, Inc., 2025 NY Slip Op 05072, Second Dept 9-24-25

Practice Point: Here the jury concluded the defendant’s repair of plaintiff’s van was negligent, but they also concluded the negligence was not the proximate cause of the accident. That verdict should not have been set aside. The evidence was such that the jury could have found that the accident as described by the plaintiff didn’t happen. The judge properly instructed them in response to a note that they could so find.

 

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DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

 

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TO DEFEAT A CPLR 3215(C) MOTION TO DISMISS AN ACTION AS ABANDONED, “SUFFICIENT CAUSE” FOR A DELAY IN MAKING A MOTION FOR A DEFAULT JUDGMENT MUST BE DEMONSTRATED, NOT THE CASE HERE; THE DISSENTERS ARGUED PARTICIPATION IN THE LITIGATION PROCEEDINGS WITH RESPECT TO OTHER PARTIES DEMONSTRATED THERE WAS NO INTENT TO ABANDON THE ACTION; THE MAJORITY REJECTED THE DISSENTERS’ ARGUMENT, IN PART BECAUSE IT WAS NOT RAISED BELOW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Department of Housing Preservation and Development’s (HPD’s) motion to dismiss the action against it by defendant Cliffcrest as abandoned should have been granted. The two dissenters relied on an argument not raised in Supreme Court:

The motion court should have granted HPD’s motion to dismiss the action against it as abandoned under CPLR 3215(c) … . The record does not support a finding that Cliffcrest “[took] proceedings” for entry of a judgment within one year of HPD’s default within the meaning of CPLR 3215(c) and Cliffcrest fails to provide sufficient cause for the delay, as required by the rule. Cliffcrest waited over five years to seek a default judgment against HPD. None of the “proceedings” it cites — Cliffcrest’s responding to discovery requests, engaging in motion practice, and participating in settlement negotiations — was directed at, or pertinent to, the entry of a default judgment against HPD. Nor does Cliffcrest show that it took any relevant proceedings within one year after HPD defaulted.

The dissent relies on an argument not raised. Specifically, Cliffcrest does not contend that it demonstrated “sufficient cause . . . why the complaint should not be dismissed” (CPLR 3215[c]). Instead, Cliffcrest emphasizes that the proceedings demonstrated a lack of intent to abandon its claims. CPLR 3215(c)’s reference to “abandon[ment],” however, is merely descriptive of the statute’s purpose (see id. [“dismiss[al] of the complaint as abandoned”]). Cliffcrest’s general showing of lack of abandonment is therefore insufficient to prevent dismissal when not tethered to the “sufficient cause” provision as a source of authority. Otherwise, and as noted, Cliffcrest unpersuasively argues that the general litigation activities qualified as “proceedings for the entry of judgment” even though none of the proceedings identified occurred within one year of HPD’s default and none were directed at a default judgment’s entry. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 2025 NY Slip Op 05052, First Dept 9-23-25

Practice Point: Consult this decision for a discussion of the evidence required to defeat a motion to dismiss an action as abandoned.

 

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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