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THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have dismissed pursuant to CPLR 3216 because the 90-day notice was defective:

On November 20, 2012, the Supreme Court issued a certification order which, inter alia, certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court. (CPLR 3216).” The plaintiff failed to file a note of issue, and the action was ministerially dismissed, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . …

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute … . Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . HSBC Bank USA, N.A. v Arias, 2020 NY Slip Op 06108, Second Dept 10-28-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1304 AND DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it met the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 and the bank did not demonstrate it had standing the bring the action:

… [T]he plaintiff failed to submit an affidavit of mailing or proof of first-class mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Sherry Benight, who was employed as a document control officer for Select Portfolio Servicing, Inc. (hereinafter SPS), which began servicing the subject loan on the plaintiff’s behalf on July 15, 2015, as well as copies of the purported notices, dated July 22, 2013. Although one of the notices contained a first-class mail 10-digit barcode, the plaintiff submitted no evidence that the letter was actually sent by first-class mail more than 90 days prior to commencement of the action. In her affidavit, Benight stated that she could confirm that the notice was sent to the defendant on July 22, 2013. However, Benight did not have personal knowledge of the purported mailing. Further, since she did not aver that she was familiar with the mailing practices and procedures of Bank of America, N.A., the entity that purportedly sent the notices, she did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . To the extent that Benight relied upon a screenshot of a TrackRight Transaction Report, she failed to establish how or when the report was created, that it was made in the regular course of business, or that it was created soon after the notices were purportedly mailed to the defendant … . …

The plaintiff also attempted to establish standing through the submission of Benight’s affidavit, but this also was insufficient. Benight asserted that the original note was delivered to the plaintiff on September 7, 2004, and that the plaintiff had since remained in possession of the note. Benight, however, did not have personal knowledge of the plaintiff’s receipt of the note, did not attest that she had personal knowledge of the plaintiff’s business practices and procedures, and also did not submit any admissible business records to show that the plaintiff possessed the note at the time this action was commenced … . Bank of N.Y. Mellon v Porfert, 2020 NY Slip Op 06083, Second Dept 10-28-20

 

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THE 2008 FORECLOSURE COMPLAINT WAS SERVED ON A DECEASED DEFENDANT AND WAS THEREFORE A NULLITY WHICH DID NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS; THE INSTANT FORECLOSURE ACTION, THEREFORE, IS NOT TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the foreclosure action was not time-barred. Although a foreclosure complaint was served in 2008, it named a deceased defendant and was therefore a nullity which did not accelerate the debt and start the statute of limitations running:

Plaintiff contends that Supreme Court erred in dismissing the action as untimely because the 2008 action was commenced only against the decedent borrower and was thus a legal nullity. We agree. “The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage” … . Accordingly, as a general rule, the commencement of a mortgage foreclosure action triggers the statute of limitations … . As pertinent here, however, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent’s estate” … . Greenpoint [Mortgage Funding] served but did not substitute the executor of decedent’s estate as a party in the 2008 action (see CPLR 1015 [a]). As such, the court lacked jurisdiction over the 2008 action, and that action was a legal nullity from its inception … . It follows that the 2008 action, a legal nullity, did not trigger the statute of limitations. Since this action was commenced within six years of the 2013 acceleration letter, the action was timely. U.S. Bank Natl. Assn. v Stewart, 2020 NY Slip Op 05982, Third Dept 10-22-20

 

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FATHER’S CHILD SUPPORT OBLIGATIONS CONTROLLED BY THE JUDGMENT OF DIVORCE, NOT THE CONFLICTING PROVISIONS OF THE SEPARATION AGREEMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the provisions in the judgment of divorce, not the separation agreement, controlled father’s child support obligations:

Although the parties entered into a separation agreement directing what the husband was to pay for child support, the subsequent judgment of divorce specifically provided that “the child support obligations of the parties hereto shall be as directed by the [c]orrective [o]rder of [s]upport . . . entered on November 16, 2017.” A conflict therefore exists between the separation agreement and the subsequently entered judgment of divorce. In such circumstance, the judgment of divorce controls … .

Although Family Court was without jurisdiction to modify the terms of the separation agreement (see Kleila v Kleila, 50 NY2d 277, 282 [1980]), the fact that the corrective order of support was denominated as an order by Family Court or that it emanated from a Family Court proceeding does not mean the terms therein are invalid. The parties voluntarily consented to the terms in the corrective order of support. Additionally, there is nothing in the record indicating that the parties disputed any of those terms. Under these circumstances, and because the judgment of divorce specifically stated that the parties’ child support obligations were to be determined by the corrective order of support, we are not of the view that Family Court modified the separation agreement. Sherman v Sherman, 2020 NY Slip Op 05993, Third Dept 10-22-20

 

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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR PLAINTIFF’S COUNSEL’S FAILURE TO APPEAR AT THE MANDATORY CONFERENCE IN THIS FORECLOSURE ACTION; PLAINTIFF BANK’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the default judgment should have been granted. The Third Department found that law office failure provided a reasonable excuse for the failure of the bank’s counsel to appear at the mandatory conference in this foreclosure action (22 NYCRR 202.27 (b)):

… [P]laintiff was required to demonstrate a reasonable excuse for its failure to appear at the conference and the existence of a potentially meritorious claim … . A determination of reasonable excuse is left to the sound discretion of Supreme Court and will only be disturbed where there has been a clear abuse of that discretion … . In exercising this discretion, Supreme Court may accept law office failure as an excuse “where the claim of law office failure is supported by a detailed and credible explanation of the default” … . …

Counsel explained that he was on vacation in Europe on the day scheduled for the conference. When counsel realized this mistake, he contacted Supreme Court and requested to appear telephonically. Supreme Court accommodated this request and, according to counsel, offered to initiate the call. However, when counsel did not receive a telephone call at the scheduled time, he telephoned chambers, and was informed that defendants had not yet appeared. Counsel avers that he never received a follow-up telephone call from Supreme Court. Counsel also provided his telephone records showing the outgoing calls that he had made that morning to chambers and no incoming calls from Supreme Court. As such, plaintiff demonstrated a reasonable excuse for not appearing at the conference. U.S. Bank, N.A. v Clarkson, 2020 NY Slip Op 05994, Third Dept 10-22-20

 

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FAMILY COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO DECLARE THE PARENTAGE OF A CHILD BORN TO A MARRIED SAME-SEX COUPLE BECAUSE THE CHILD WAS NOT BORN “OUT-OF-WEDLOCK;” RECENTLY ENACTED LEGISLATION WILL SOON ALLOW SUCH A PETITION IN FAMILY COURT AND THE PARTIES MAY NOW SEEK A DECLARATORY JUDGMENT ON THE ISSUE IN SUPREME COURT, WHICH HAS SUBJECT MATTER JURISDICTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, determined Family Court did not have subject matter jurisdiction over the petition to declare petitioners, a same-sex married couple, as the legal parents of the child conceived with donated sperm. Although the Family Court Act allows the court to determine “paternity” for a female parent, the court’s jurisdiction in that regard is limited to children born out-of-wedlock. The Third Department noted that legislation will soon allow a Family Court petition for a judgment of parentage and Supreme Court has jurisdiction to hear an application for a declaratory judgment on the issue:

… [T]he Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” … and further defined a child in Family Ct Act article 5 as one “born out of wedlock” … . Petitioners were married at all relevant times, and their child was not born out of wedlock. …

We note the recent enactment of Family Ct Act article 5-C, which will soon allow a petition for a judgment of parentage … . Moreover, if petitioners articulate how “an adjudication of the merits will result in immediate and practical consequences to” them … , they are presently free “to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties” … . Matter of Alison RR, 2020 NY Slip Op 06002, Third Dept 10-22-20

 

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NEW YORK DOES NOT RECOGNIZE A COMMON LAW CAUSE OF ACTION FOR SEXUAL HARASSMENT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined New York does not recognize a cause of action for sexual harassment:

… New York does not recognize an independent, common-law cause of action to recover damages for sexual harassment … . Rather, allegations of sexual harassment—which typically arise in the context of an asserted violation of Title VII of the Civil Rights Law of 1964 (42 USC, ch 21, § 2000e et seq.), the New York State Human Rights Law (Executive Law § 296), and/or the New York City Human Rights Law (Administrative Code of City of NY § 8-107)—may form the basis of cognizable common-law tort theories such as, inter alia, assault and battery, negligent training and supervision, and intentional infliction of emotional distress … .

Accordingly, the Court of Claims should have granted that branch of the State’s cross motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the claim as was predicated upon a purported common-law cause of action to recover damages for sexual harassment. Budha T. v State of New York, 2020 NY Slip Op 05966, Second Dept 10-21-20

 

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DERIVATIVE NEGLECT FINDING STEMMING FROM A MOTION FOR SUMMARY JUDGMENT REVERSED; MOTHER HAD SUCCESSFULLY PARTICIPATED IN MENTAL HEALTH TREATMENT SINCE THE NEGLECT FINDINGS WITH RESPECT TO THE OLDER CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined a derivative neglect finding stemming from a motion for summary judgment should not have been granted. Mother had participated in mental health treatment and had made progress since the prior neglect findings with respect to her older children:

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a] …). In support of its motion, ACS [Administration for Children’s Services] submitted the court’s prior orders determining that the mother neglected the two older children … . While there were findings of neglect as to the subject child’s two siblings, “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . …

… ACS failed to establish as a matter of law that, under the circumstances, the neglect of the subject child’s siblings merits a finding of derivative neglect as to the subject child … . The medical records submitted by ACS demonstrated that the mother had failed to comply with her mental health treatment in late 2016, which noncompliance was a basis of the prior findings of neglect. However, the records submitted also demonstrated that the mother recommenced treatment in early 2017, immediately after the finding of neglect as to the second child, Akira, and that the mother was thereafter compliant and made positive progress in her mental health treatment for the following year. Accordingly, it cannot be said that ACS established, prima facie, that the mother derivatively neglected the subject child through her failure to resolve the same issues that were the basis for the prior findings of neglect as to the two older children … . Matter of Azayla K. L. (Aleisha L.), 2020 NY Slip Op 05902, Second Dept 10-21-20

 

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RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff properly raised res ipsa loquitur in opposition to defendant’s motion for summary judgment even though the notice of claim and the complaint did not allege it. Res ipsa loquitur is not a theory of liability, it is a rule of evidence:

Plaintiff investigated a hissing sound coming from the electrical circuit box in her apartment and as she drew close to the circuit box, it suddenly burst into flame, burning her right arm. Plaintiff may raise res ipsa loquitur in opposition to defendant’s motion without having alleged the doctrine in her notice of claim or complaint, as it is not a separate theory of liability, but rather, an evidentiary rule that involves “‘a common sense application of the probative value of circumstantial evidence'” … . Plaintiff’s evidence raised triable issues as to application of the doctrine, as it showed that she had resided in the apartment for nearly 19 years, she would contact defendant’s employees to remedy any issues with the circuit box, and defendant’s employees handled the inspection, maintenance, and repair of the circuit box … . To the extent defendant argues its lack of notice of the alleged dangerous condition, a triable issue of fact exists here regarding the applicability of the res ipsa doctrine, and proof of notice of a dangerous condition may be inferred under the doctrine … . Townsend v New York City Hous. Auth., 2020 NY Slip Op 05874, First Dept 10-20-20

 

NEW YORK RECOGNIZES CROSS-JURISDICTIONAL TOLLING OF THE STATUTE OF LIMITATIONS WHEN A CLASS ACTION IS FILED IN ANOTHER STATE OR FEDERAL COURT; THE TOLLING ENDS UPON DISMISSAL OF THE OUT-OF-STATE ACTION, EVEN WHEN NOT ON THE MERITS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge partial dissent, answering certified questions from the Second Circuit, determined: (1) New York recognizes the tolling of the statute of limitations for absent members of putative class actions filed in other state and federal courts (cross-jurisdictional tolling); and (2) the tolling of the statute ceases when the filed actions are terminated, even for reasons not on the merits (i.e., forum non conveniens or a denial of certification for any reason). Here class actions stemming from the use of a pesticide (nematicide) in the growing of bananas, involving foreign plaintiffs from countries where bananas are grown, were filed in Texas in 1993. The Texas actions were dismissed in 1995. The instant action was filed in 2012 in the Southern District of New York:

We conclude that a determination that tolling is not available cross-jurisdictionally would subvert article 9—the primary function of which is to allow named plaintiffs to bring truly representative lawsuits without necessitating a multiplicity of litigation that squanders resources and undermines judicial economy, while still ensuring that defendants receive fair notice of the specific claims advanced against them. CPLR article 9 is closely related to and modeled on Federal Rules of Civil Procedure rule 23 …, and the same animating policies the United States Supreme Court discussed in American Pipe [414 US 538] and its progeny also underlie article 9. * * *

Because recognition of cross-jurisdictional tolling implicates our statutes of limitations, a bright-line rule is necessary to provide clarity to all parties in understanding their rights and obligations and, in fairness—as with the policies underlying the application of statutes of limitations, generally—to balance the interests of both plaintiffs and defendants. Therefore, we hold that tolling ends—as a matter of law—when there is a clear dismissal of a putative class action, including a dismissal for forum non conveniens, or denial of class certification for any reason. Under those circumstances, future plaintiffs are on notice that they must take steps to protect their rights because the litigation no longer compels the court to address class certification or the named plaintiffs to advance absent class members’ interests. At that point, it is no longer objectively reasonable for absent class members to rely upon the existence of a putative class action to vindicate their rights, and tolling is extinguished … . Thus, in this case, the 1995 Texas orders that dismissed that action on forum non conveniens grounds ended tolling, as a matter of law. Chavez v Occidental Chem. Corp., 2020 NY Slip Op 05839, CtApp 10-20-20

 

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