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THE JURY RENDERED A VERDICT IN FAVOR OF PLAINTIFF, FINDING THAT DEFENDANT UNDULY INFLUENCED DECEDENT TO NAME HIM AS THE SOLE BENEFICIARY OF TWO BROKERAGE ACCOUNTS; THE CONCLUSORY AND SPECULATIVE PROOF OF UNDUE INFLUENCE DID NOT SUPPORT THE VERDICT; DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s post-verdict motion for judgment as a matter of law (CPLR 4401) dismissing the complaint should have been granted. Plaintiff alleged defendant unduly influenced the decedent to remove plaintiff as a beneficiary of two brokerage accounts and name defendant as the sole beneficiary. The court explained the shifting burdens of proof:

“‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In determining whether the defendant has met this burden, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial” … .

“Generally, the burden of proving undue influence rests with the party asserting its existence” … . “Where, however, the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence” … . “‘In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence'” … .

… [T]he plaintiff did not establish that a confidential relationship existed between the decedent and the defendant … . * * *

As a result, the burden of proving undue influence remained upon the plaintiff … . * * *

… [P]laintiff presented only conclusory and speculative evidence that the defendant exercised undue influence over the decedent … . “‘[A] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized'” … . Collins v Denaro, 2026 NY Slip Op 03142, Second Dept 5-20-26

Practice Point: Consult this decision for insight into  the shifting burdens of proof applied to a motion for a judgment as a matter of law made by a defendant after a plaintiff’s verdict. Here the appellate court determined the conclusory and speculative evidence did not support the jury’s verdict.

 

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THIS LAWSUIT BY A PENNSYLVANIA PENSION FUND AGAINST A LONDON BANKING AND FINANCIAL SERVICES COMPANY TRIGGERED THE APPLICATION OF NEW YORK’S CONFLICT-OF-LAW RULES (“PROCEDURAL” VS “SUBSTANTIVE”) AND THE “FORUM NON CONVENIENS” DOCTRINE (SECOND DEPT). ​

The Second Department, applying conflict-of-law rules, determined the complaint in this shareholder derivative action should not have been dismissed based on plaintiff’s lack of standing. But the complaint should have been conditionally dismissed on “forum non conveniens” grounds:

The plaintiff commenced this shareholder derivative action in the Supreme Court, Nassau County. The plaintiff, the trustee of a Pennsylvania pension fund, is a shareholder in the nominal defendant Standard Chartered PLC (hereinafter SC). SC is a multinational banking and financial services company. SC is publicly owned, is registered and organized under the laws of England and Wales, and is headquartered in London. The nominal defendant Standard Chartered Holdings, Ltd. (hereinafter SC Holdings) is a wholly-owned subsidiary of SC. Nonparty Standard Chartered Bank (hereinafter SC Bank) is a wholly-owned subsidiary of SC Holdings. SC Bank, an international bank, is licensed to operate a foreign bank branch in New York. * * *

Since the procedural law of the forum typically applies under our conflict-of-law rules, the plaintiff’s failure to commence the action in England and Wales or Northern Ireland does not bar it from relying on the UK Companies Act to establish derivative standing in New York … . * * *

… [T]he plaintiff is the trustee of a Pennsylvania pension fund, and SC is registered and organized under the laws of England and Wales and is headquartered in London. None of the individual defendants reside in New York. Further, the central actionable events transpired in the United Kingdom, where SC’s directors and officers held their meetings. Although the plaintiff contends that SC presided over a money laundering scheme centered on SC Bank’s New York branch, its derivative claims center on management decisions made in the United Kingdom … . Further, it is undisputed that English substantive law governs the plaintiff’s claims. Under these circumstances, the Supreme Court should have conditionally granted SC’s motion to dismiss the amended complaint insofar as asserted against it pursuant to CPLR 327 on the ground of forum non conveniens, as the burden which would be imposed upon the courts of this State if this action was retained would be substantial … . City of Philadelphia Bd. of Pensions & Retirement v Winters, 2026 NY Slip Op 03141, Second Dept 5-20-26

Practice Point: Consult this decision for insight into the application of New York’s conflict-of-laws rules and the “forum non conveniens” doctrine in a lawsuit brought in New York by a Pennsylvanian pension fund against a London banking and financial services company.

 

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AN IN DEPTH ANALYSIS OF THE JURISDICTIONAL PRIORITY ISSUES RAISED IN A CUSTODY MATTER REGARDING A NAVAJO CHILD, BORN TO A NAVAJO MOTHER IN NEW MEXICO, LIVING ON THE NAVAJO NATION RESERVATION IN UTAH, WITH FATHER RESIDING IN NEW YORK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey, grappled with the complex procedural and jurisdictional issues surrounding the custody of a Navajo child, born in New Mexico to a Navajo mother, living on the Navajo Nation reservation in Utah, and residing with father in New York. The issue is jurisdictional priority at the convergence of the Indian Child Welfare Act (ICWA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The opinion is far too complex to summarize here.  Matter of Kody II. v Shaunta JJ., 2026 NY Slip Op 03044, Third Dept 5-14-26

 

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HERE THE “RENEWED” SUMMARY JUDGMENT MOTION WAS BASED ON EVIDENCE WHICH WAS AVAILABLE FOR THE FIRST MOTION; THE “RENEWED” MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s renewed motion for summary judgment should not have been granted; it was based on evidence which was available for the first motion:

… “[S]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification” … . In support of the renewed motion for summary judgment, plaintiff presented an affirmation from Joseph DeCiutiis, a senior vice president at a title insurance company who represented that his company had determined that a secretary certificate of authority for the sale of the subject real property was “insurable authorization for the sale.” While the DeCiutiis affirmation is dispositive of the issue of fact identified by this Court in Apple Bank I with respect to plaintiff’s entitlement to summary judgment, plaintiff offers no reason why it could not have obtained a similar affirmation in support of its first summary judgment motion. Such evidence “was clearly available to [plaintiff] earlier, and thus should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion” … .  Apple Bank for Sav. v Prime Rok Real Estate LLC., 2026 NY Slip Op 03057, First Dept 5-14-26

Practice Point: A “successive” summary judgment motion which is based on evidence which could have been included in the initial motion will be denied.

 

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THE DEATH OF ONE OF THE DEFENDANTS DURING THE FORECLOSURE PROCEEDINGS RENDERED THE JUDGMENT OF FORECLOSURE, WHICH INCLUDED A DEFICIENCY JUDGMENT AGAINST THE DECEASED DEFENDANT, A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment of foreclosure was a nullity and the court did not have jurisdiction over the appeal because one of the defendants died during the proceedings:

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'” … . Ordinarily, any determination rendered without such a substitution is deemed a nullity … . However, under certain circumstances, where a party’s death does not affect the merits of a case, this Court has found that there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution … .

Here, the record demonstrates that as of July 2021, the plaintiff and the Supreme Court were on notice that [defendant] Trevor P. Williams had died. Nevertheless, the proceedings continued after that date, and in March 2022, the court issued the subject order and judgment of foreclosure and sale, which contains a deficiency provision applicable to Trevor P. Williams.

Given the deficiency provision contained in the order and judgment of foreclosure and sale, the demise of Trevor P. Williams affects the merits of the case … . The contention of nonparty U.S. Bank Trust, N.A., that it waived the right to seek a deficiency against Trevor P. Williams is based on evidence dehors the record and, therefore, is not properly considered on this appeal … . Therefore, under the circumstances of this case, since a proper substitution was not made as required by CPLR 1015(a), the Supreme Court was without jurisdiction, inter alia, to issue the order and judgment of foreclosure and sale. Accordingly, the order and judgment of foreclosure and sale appealed from is a nullity and must be vacated and the appeal must be dismissed, as this Court has no jurisdiction to entertain the appeal . Champion Mtge. v Williams, 2026 NY Slip Op 02960, Second Dept 5-13-28

Practice Point: If the death of a party doesn’t affect the merits of the case, sometimes the need to stay the proceeding and substitute a personal representative can be overlooked. Here, however, the judgment of foreclosure included a deficiency judgment against the deceased defendant. Therefore the death affected the merits and the proceedings were rendered a nullity.​

 

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BECAUSE THE ORDER DISMISSING THE COMPLAINT DID NOT DECIDE A MOTION MADE ON NOTICE, THE ORDER IS NOT APPEALABLE AS OF RIGHT; THEREFORE, A MOTION TO VACATE THE DISMISSAL PURSUANT TO CPRL 2221(A) IS PROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the dismissal order in this foreclosure action should have been granted. The order dismissing the complaint was not appealable as of right because it did not decide a motion made on notice. Therefore a motion to vacate the dismissal pursuant to CPLR 2221(a) was proper and should have been granted:

The Supreme Court should have granted the plaintiff’s motion, in effect, pursuant to CPLR 2221(a) to vacate the dismissal order and to restore the action to the active calendar. A motion pursuant to CPLR 2221(a) is not subject to any specific time limitation … . Where, as here, an order directing dismissal of a complaint is not appealable as of right because it did not decide a motion made on notice, it is procedurally proper for the aggrieved party to move pursuant to CPLR 2221(a) to vacate that order … .

CPLR 3215(c) provides that “[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” … . Here, CPLR 3215(c) is not applicable to the defendant under the circumstances of this case, as she appeared in the action by answer … . “Further, this action does not present an extraordinary circumstance as would warrant a sua sponte dismissal of the complaint” … . US Bank N.A. v Jones-Boakai, 2026 NY Slip Op 03019, Second Dept 5-13-26

Practice Point: If an order dismissing a complaint is not appealable as of right because it did not decide a motion made on notice, a motion to vacate the dismissal pursuant to CPLR 2221(a) is proper.​

 

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THE ONLY ACTION PLAINTIFF TOOK WITHIN A YEAR OF DEFENDANT’S DEFAULT IN THIS FORECLOSURE CASE WAS TO REQUEST A SETTLEMENT CONFERENCE; BUT A SETTLEMENT CONFERENCE IS NOT REQUIRED WHEN THE DEFENDANT DOES NOT RESIDE AT THE PROPERTY SUBJECT TO FORECLOSURE; SINCE NO ACTION WAS TAKEN TO ENTER THE DEFAULT JUDGMENT WITHIN A YEAR, THE COMPLAINT WAS DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not take proceedings for the entry of a default judgment within one year requiring dismissal of the complaint. Although plaintiff did request a settlement conference within one year, the settlement conference was not required because the defendant did not reside at the property subject to foreclosure:

… [P]laintiff had one year from July 17, 2012, to take proceedings for the entry of judgment against the defendant (see CPLR 3215[c] …). However, the plaintiff did not take such proceedings until over two years later, when it moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference in March 2015. Thus, the plaintiff failed to take proceedings for the entry of judgment within one year after the defendant’s default. Although the plaintiff filed a request for judicial intervention requesting a foreclosure settlement conference within the one-year period after the defendant’s default, a settlement conference was not required in this case because the defendant did not reside at the property subject to foreclosure (see CPLR 3408[a][1]). As such, the filing of the request for judicial intervention did not constitute the taking of proceedings for the entry of a judgment pursuant to CPLR 3215(c) and did not toll the one-year deadline to do so … . U.S. Bank N.A. v Islam, 2026 NY Slip Op 03015, Second Dept 5-13-26

Practice Point: Requesting a settlement conference which is not required does not toll the one-year period for taking proceedings to enter a default judgment in a foreclosure action.

 

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THE DEFENDANT’S ATTORNEY IN THIS FORECLOSURE ACTION FILED A NOTICE OF APPEARANCE WHICH WAIVED ANY OBJECTION TO PERSONAL JURISDICTION; JUDGMENT OF FORECLOSURE REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court and reinstating the judgment of foreclosure, determined that the defendant’s (the Church’s) attorney’s filing of a notice of appearance waived any objection to personal jurisdiction:

CPLR 5015(a)(4) provides in relevant part that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order.” Under CPLR 5015(a)(4), a default must be vacated once lack of personal jurisdiction has been established … . “[T]he filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, since it is undisputed that Goodman filed a notice of appearance on behalf of the Church and that the Church failed, at that time, to file an answer raising the defense of lack of personal jurisdiction or to make a pre-answer motion to dismiss on that ground, the Church waived the defense of lack of personal jurisdiction … . There is no merit to the Church’s contention that a notice of appearance that is untimely filed does not confer personal jurisdiction over a defendant … . NYCTL 1998-2 Trust v Grace Christian Church, 2026 NY Slip Op 02995, Second Dept 5-13-26

Practice Point: A notice of appearance by defendant’s attorney which is accepted by plaintiff, even if the notice is “late,” waives any objection to personal jurisdiction.

 

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UPON THE PRIOR APPEAL, THE SECOND DEPARTMENT MADE A FINDING THAT RESPONDENT SUFFERED FROM SEXUAL SADISM DISORDER AND REMITTED THE MATTER; SUPREME COURT IGNORED THE FINDING AND HELD A NEW NONJURY TRIAL ON ALL ISSUES; SUPREME COURT DID NOT HAVE THE AUTHORITY TO IGNORE THE SECOND DEPARTMENT’S MANDATE (SECOND DEPT).​

The Second Department, reversing Supreme Court, determined Supreme Court improperly ignored the terms of the Second Department’s remittitur. On the prior appeal, the Second Department held that the petitioner had proven respondent suffered from sexual sadism disorder. On remittal, however, Supreme Court held a new nonjury trial on all issues, including whether respondent suffered from sexual sadism disorder:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” … . Therefore, “an order or judgment entered on remittitur ‘must conform strictly to the remittitur'” … .

Here, as the determination of this Court in the January 2024 order is binding upon the Supreme Court … , the Supreme Court erred in, sua sponte, holding a nonjury trial on all issues and redetermining issues already determined by this Court … . Accordingly, the first May 2025 order must be reversed, and we remit the matter again to the Supreme Court, Kings County, for a new trial and determination as to whether the respondent’s diagnoses of ASPD, psychopathy, and sexual sadism disorder are sufficient to find that the respondent suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) … , and a dispositional hearing, if appropriate … . Matter of State of New York v Ezikiel R., 2026 NY Slip Op 02987, Second Dept 5-13-26

Practice Point: A trial court cannot deviate from the mandate of a higher court. Here the appellate court’s finding was ignored by Supreme Court upon remittal, requiring reversal and another remittal.

 

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AFTER PLAINTIFF’S COUNSEL WITHDREW, THE JUDGE SET A DEADLINE FOR PLAINTIFF TO APPEAR WITH NEW COUNSEL; WHEN THE DEADLINE PASSED, THE JUDGE, SUA SPONTE, DISMISSED THE MEDICAL MALPRACTICE COMPLAINT; THE JUDGE DID NOT HAVE THE AUTHORITY FOR THE “SUA SPONTE” DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge did not have the authority to, sua sponte, dismiss the complaint when plaintiff missed the court’s deadline for finding new counsel:

… [C]ounsel … moved for leave to withdraw as the plaintiff’s counsel. … Supreme Court, inter alia, granted the motion and directed that should the plaintiff fail to retain counsel by February 1, 2023, the complaint would be dismissed. Thereafter, in an order dated February 8, 2023, the court, upon the conditional order, sua sponte, directed dismissal of the complaint with prejudice. The plaintiff appeals.

“A court’s power to dismiss a complaint sua sponte is to be used sparingly, and only when extraordinary circumstances exist to warrant such a dismissal” … . Here, the Supreme Court was without authority, either pursuant to CPLR 3216 or 22 NYCRR 202.27 … , to direct dismissal of the complaint … . Under these circumstances, the court improperly, sua sponte, directed dismissal of the complaint .. . Dowd v Tischler, 2026 NY Slip Op 02968, Second Dept 5-13-26

Practice Point: Appellate courts don’t like “sua sponte” dismissals of complaints.

 

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