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HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s argument in this foreclosure action should not have been considered because it was raised for the first time in reply papers. In its reply, the plaintiff argued that the foreclosure action was not time-barred because defendant revived the statute of limitations by making payments within the six years prior to the commencement of the action:

[Plaintiff] failed to establish, prima facie, that this action was not time-barred. The plaintiff’s submissions revealed that the mortgage debt was accelerated in January 2007, when the plaintiff commenced the first prior action to foreclose the mortgage … . This action was commenced in July 2018, more than six years later. The plaintiff’s contention that payments the defendant made on the loan as late as September 2013 served to renew the statute of limitations, making this action timely, is not properly before this Court, as it was raised for the first time in reply papers submitted to the Supreme Court, and there is no indication that the defendant was afforded an opportunity to submit a surreply or that this new argument responded to allegations the defendant raised for the first time in his opposition papers … . Bank of N.Y. Mellon v Cooper, 2025 NY Slip Op 03297, Second Dept 6-4-25

Practice Point: Here the Second Department noted that an argument raised for the first time in reply papers was not properly before the appellate court. There was no indication sur-reply papers were submitted or that the reply-argument was a response to an issue raised by the other party.

 

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HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY, PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the wrong accident-date in the notice of claim did not warrant dismissal of the action. The wrong date was not willful and the municipality was not prejudiced. The plaintiff alleged she was injured when the driver of the defendant NYC Transit Authority’s bus stopped short:

“‘To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'” … . General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, “the time when, the place where and the manner in which the claim arose” … . “‘[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident'” … . “Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” … .

Here, there is no indication in the record that the accident date listed in the notice of claim and the complaint was set forth in bad faith … . Rather, the plaintiff’s mistake was based upon her reliance on a police report that incorrectly listed the accident date … . Moreover, contrary to the Supreme Court’s determination, the proposed amendment to the accident date was purely technical in nature and did not substantively change the nature of the claim … .

Furthermore, the record does not reflect that the defendants will be prejudiced by the plaintiff’s delay in moving for leave to amend the notice of claim. Under the circumstances of this case, including that the plaintiff received medical assistance at the accident site, that specific details regarding the circumstances of the accident, including the accident location and bus route, were set forth in a police report and the notice of claim, and that the plaintiff’s error in listing an accident date several days prior to the actual date of the accident was minimal, the defendants could have ascertained the date of the accident “with a modicum of effort” … . Hernandez v City of New York, 2025 NY Slip Op 03312, Second Dept 5-4-25

Practice Point: Here the wrong accident-date was included in the notice of claim and the plaintiff moved to amend the notice. Because the wrong date was not used in bad faith (the date was taken from the police report) and because the city was not prejudiced by the error, plaintiff’s motion to amend the notice of claim should have been granted.

 

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THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with Kings County Supreme Court Uniform Civil Term Rule 8, which requires the bank to file a motion for judgment of foreclosure withing one year of entry of the order of reference, warranted dismissal of the action:

“Rule 8 requires a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure within one year of entry of the order of reference” … . “Where the plaintiff offers an excuse for its failure to comply with Rule 8, ‘[t]he determination of whether [the] excuse is reasonable is committed to the sound discretion of the motion court'” … . “Reversal is warranted ‘if that discretion is improvidently exercised'” … .

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for failure to comply with Rule 8. The order of reference was entered on August 28, 2012, * * * [and] the plaintiff failed to provide a reasonable excuse as to why [the bank] did not move for a judgment of foreclosure and sale prior to August 28, 2013. Contrary to the court’s determination, the failure to comply with Rule 8 is a sufficient ground upon which to dismiss a foreclosure action … . Wells Fargo Bank N.A. v Kahan, 2025 NY Slip Op 03354, Second Dept 6-4-25

Practice Point: Here the bank’s failure to comply with a Kings County Supreme Court Uniform Civil Term Rule warranted dismissal of the foreclosure action.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against defendant school for negligent and intentional infliction of emotional distress, and the demand for punitive damages, should have been dismissed. This Child Victims Act case alleged plaintiff-student was sexually abused by a janitor:

… Supreme Court should have directed dismissal of the cause of action alleging negligent infliction of emotional distress insofar as asserted against each of the school defendants, as it is duplicative of the remaining negligence causes of action … . A cause of action is properly dismissed as duplicative when it is “based on the same facts and seek[s] essentially identical damages” … .

Furthermore, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . “The subject conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress … . Here, even accepting the conclusory allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff failed to allege conduct by the school defendants that was “so outrageous in character, and so extreme in degree,” as to qualify as intentional infliction of emotional distress … . Accordingly, the Supreme Court should have directed dismissal of the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against each of the school defendants pursuant to CPLR 3211(a)(7).

… Supreme Court should have directed dismissal of the demand for punitive damages insofar as asserted against each of the school defendants. “[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives” … . Here, the plaintiff’s allegations against the school defendants amount to “nothing more than allegations of mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages” … . Redd v Brooklyn Friends Sch., 2025 NY Slip Op 03214, Second Dept 5-28-25

Practice Point: Consult this decision for the criteria for sufficiently alleging negligent and intentional infliction of emotional distress causes of action, as well as the criteria for a demand for punitive damages against a school in a Child Victims Act case​.

 

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IN THIS TRAFFIC-ACCIDENT CASE, PLAINTIFF BROUGHT THE ACTION IN AN IMPROPER VENUE; DEFENDANTS’ MOTION TO CHANGE VENUE WAS SIX DAYS LATE; SUPREME COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue in this traffic-accident case should have been granted. Plaintiff had brought the action in an improper venue. Although the defendants’ motion to change venue was six days late, Supreme Court had the discretion to grant it:

CPLR 510 sets forth grounds on which a motion to change venue may be made. When a defendant moves to change venue on the ground that the venue selected by the plaintiff is not proper … , the defendant must serve a timely demand on the plaintiff prior to making the motion … . When a motion to change venue on this ground is untimely, the motion is addressed to the court’s discretion rather than based on right … . Here, the defendants acknowledge that, after serving a demand to change venue with their answer, they moved to change the venue of the action six days late. Thus, their motion “became one addressed to the court’s discretion” … .

Under the circumstances present here, the Supreme Court improvidently exercised its discretion in denying the defendants’ motion pursuant to CPLR 510 to change the venue of the action from Kings County to Suffolk County. Venue is proper “in the county in which one of the parties resided when [the action] was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred ” … . Here, there is no dispute that none of the parties resided in Kings County and that the accident did not occur in Kings County. By selecting an improper venue in the first instance, the plaintiff forfeited the right to choose venue … . Further, the plaintiff failed to show that the county specified by the defendants was improper and did not cross-move to retain venue in Kings County or to transfer venue to a county other than that urged by the defendants … . Moreover, although the defendants’ motion was untimely, they promptly moved to change the venue of the action after confirming the true location of the accident … . Pujals v Haitidis, 2025 NY Slip Op 03213, Second Dept 5-28-25

Practice Point: Plaintiff brought the action in an improper venue. Defendants’ motion to change venue was six days late. Under the facts, Supreme Court improvidently exercised its discretion when it denied defendants’ motion.

 

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MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES, DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined an exception to the mootness doctrine applied (to allow the appeal to be heard) and the mandamus-to-compel proceeding should have been denied on the merits. Petitioner mother sought to compel the support magistrate to hold a hearing on father’s alleged support-order violation within the time allowed by the Uniform Rules for Family Court. The Appellate Division held that, although the relevant rule setting a deadline for a hearing used mandatory language, a judge has the discretion the adjourn matters beyond a deadline set in the Uniform Rules:

… [W]e conclude that the exception to the mootness doctrine applies. The petitioner has demonstrated that the issue is “capable of repetition” in other cases … . It also involves a phenomenon that will typically evade appellate review, since a Family Court can render any challenge to an alleged failure to adhere to the provisions of the rule academic by advancing a hearing date or completing a hearing in its entirety … , as occurred in this case … . Further, the argument raised by the petitioner presents “a substantial and novel issue of statewide importance regarding the rights of [custodial] parents” to resolve child support disputes in a timely manner … . * * *

… [W]e conclude that a writ of mandamus is not available to compel judicial officers to comply with the deadlines set forth in 22 NYCRR 205.43(b) and (e). As our colleagues in the First Department recognized, “[t]he timely completion of [child support] hearings depends on discretionary determinations made by individual Family Court judges and support magistrates as to whether good cause exists for adjournments” … . Indeed, the decision of a Family Court judge or support magistrate to grant an adjournment in a support proceeding is discretionary in nature (see Family Ct Act § 435 …). This Court, for example, has reversed orders in circumstances where a court’s denial of an adjournment request constituted an abuse or improvident exercise of discretion … . Further, the rule expressly states that judges and support magistrates may grant adjournments for various reasons, including to permit a party to secure counsel, in circumstances where a party’s counsel establishes actual engagement, due to the illness of a party, or for other good cause shown … . Therefore, “[a]lthough the 90-day limit” of 22 NYCRR 205.43(b) “is written in mandatory terms,” as is the 7-day limit of 22 NYCRR 205.43(e), these provisions do “not impose . . . nondiscretionary ministerial dut[ies]” upon judges or support magistrates that may be subject to mandamus … . In reaching this determination, we express no opinion as to whether a judicial officer’s alleged failure to adhere to the relevant provisions of 22 NYCRR 205.43 may be successfully challenged under provisions of CPLR article 78 that are not at issue here … . Matter of Santman v Satterthwaite, 2025 NY Slip Op 03196, Second Dept 5-28-25

Practice Point: Consult this decision for an explanation for when a moot issue can be heard on appeal.

Practice Point: Although the Uniform Rules for Family Court use mandatory language in setting a deadline for holding a hearing on an alleged violation of a support order, the support magistrate had the discretion to adjourn the hearing beyond the deadline set in the Rules.

 

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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense:

“‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law'” … . “A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield” … . Moreover, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield cannot be comparatively negligent for failing to avoid the collision” … .

“[T]he issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that the plaintiff driver entered the intersection with a green traffic light and had the right-of-way and that Mendez’s conduct was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff driver was comparatively negligent in causing the accident … . Ederi v Mendez, 2025 NY Slip Op 03041, Second Dept 5-21-25

Practice Point: A driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent and is entitled to summary judgment dismissing the comparative negligence affirmative defense.

 

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and a police report, the school district’s timely actual knowledge of the incident and the injuries did not demonstrate knowledge of the essential facts constituting the claim:

… [T]he petition failed to establish that the District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … . “[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” … .

Here, while an employee incident report, a police incident report, and the involvement of an employee of the District in the incident may have established the District’s actual knowledge of the incident, they did not provide the District with actual knowledge of all of the essential facts underlying the claim … . Among other things, although the District was presumably aware that M. C.’s individualized education program (hereinafter IEP) allegedly required him to have an aide with him at all times due to aggression, and that no such aide had been assigned to him at the time of the incident, neither the IEP nor the incident reports described the incident while making a connection between [petitioner’s] injuries and negligent conduct on the part of the District … . Matter of Cooke v Mamaroneck Union Free Sch. Dist., 2025 NY Slip Op 03062, Second Dept 5-21-25

Practice Point: One of the criteria for leave to file a late notice of claim against a school district is that the district have had timely knowledge of the facts underlying the claim. Timely knowledge of the incident and injuries is not sufficient. The district must have had timely knowledge of the facts underlying the theory or theories of liability.

 

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HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conclusory affidavit by defendants’ mother, alleging she was not served with the summons and complaint but rather found the papers on the ground in front of her front door, was not sufficient to rebut the process server’s affidavit demonstrating proper service upon a person identified as “aunt:”

… [T]he process server’s affidavits constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) … . Contrary to the defendants’ contention, the defendants’ mother’s affidavit was insufficient to rebut the presumption arising from the process server’s affidavits because it was conclusory and not substantiated by specific facts … . The defendants’ mother’s conclusory averment that she did not receive service was insufficient to rebut the statement in the process server’s affidavits that an “AUNT” had accepted service. Furthermore, the defendants’ mother did not assert that there was no one else present at the premises who could have accepted service.

Therefore, because the defendants’ mother’s affidavit was insufficient to rebut the presumption of proper service, a hearing was not warranted … . … Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint … . Harvey v Usukumah, 2025 NY Slip Op 03050, Second Dept 5-21-25

Practice Point: Here defendants’ mother’s affidavit claiming she was not served with the summons and complaint but rather found the papers on the ground outside the front door was deemed insufficient to rebut the process server’s affidavit. Therefore no hearing about the propriety of service should have been held and the motion to dismiss the complaint should have been denied.​

 

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