You are here: / Civil Procedure
,

MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND’S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff's motion to amend her complaint in this legal malpractice action to sue as a representative of the estate of her husband, rather than in her individual capacity, was properly granted:

“[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense” … .

The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint … . Moreover, the appellants' contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f] … ). D'Angelo v Kujawski, 2018 NY Slip Op 05750, Second Dept 8-15-18

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/CPLR 203  (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))

, , , ,

ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF’S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT).

The Second Department determined plaintiff's actions stemming from exposure to asbestos, including an action against the county alleging fraudulent concealment of the presence of asbestos where plaintiff worked, were time barred:

Generally, an action to recover damages for personal injuries caused by the latent effects of exposure to any substance or combination of substances must be commenced within three years of the date of discovery of the injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier (see CPLR 214-c[2] …). “For purposes of CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Where, as here, a claim is asserted against a municipality, the statute of limitations as to the claim against the municipality is 1 year and 90 days and is measured from the date of discovery of the injury or from the date when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier … . O'Brien v County of Nassau, 2018 NY Slip Op 05774, Second Dept 8-15-18

TOXIC TORTS (ASBESTOS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/ASBESTOS (ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/MUNICIPAL LAW (TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/(STATUTE OF LIMITATIONS, TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/FRAUD (ASBESTOS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))

, ,

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed a foreclosure complaint based upon an alleged failure of a condition precedent, and the judge should not have addressed the issue of standing, which was not a jurisdictional issue and was not, and could not be, raised by defendant, who had defaulted:

“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 Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint… . The plaintiff's alleged failure to satisfy a condition precedent in the mortgage by failing to provide the defendant with 30 days' written notice of his default in making mortgage payments, even if true, did not deprive the court of jurisdiction to enter a judgment of foreclosure and sale … .

To the extent that the Supreme Court addressed the issue of the plaintiff's standing in the order appealed from, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court Moreover, since the defendant defaulted in appearing or answering the complaint, and failed to move to vacate his default, he is precluded from asserting lack of standing as a defense … . Countrywide Home Loans, Inc. v Campbell, 2018 NY Slip Op 05749, Second Dept 8-15-18

FORECLOSURE (JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))

, ,

DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined Supreme Court properly considered an expert's affidavit as part of defendants' timely motion for summary judgment, and properly determined the defect which allegedly caused plaintiff's fall was trivial as a matter of law:

“[A] party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment” … . Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in considering the expert affidavit submitted by the defendants on their motion for summary judgment, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101(d)(1)(I) was intentional or willful, and there was no showing of prejudice to the plaintiff … . …

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increases the risks it poses” … . “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” … .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, inter alia, an expert affidavit, photographs acknowledged by the plaintiff as accurately reflecting the condition of the alleged defect as it existed at the time of the accident, and the plaintiff's deposition testimony describing the time, place, and circumstances of the injury. … Cobham v 330 W. 34th SPE, LLC, 2018 NY Slip Op 05748, Second Dept 8-15-18

NEGLIGENCE (DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/SLIP AND FALL  (DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/CIVIL PROCEDURE (EXPERTS, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/EXPERTS (CIVIL PROCEDURE, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT)}/CPLR 3101 (EXPERTS, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))/EVIDENCE (EXPERT OPINION, DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE, DEFECT FOUND TO BE TRIVIAL AS A MATTER OF LAW (SECOND DEPT))

, , ,

ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE CONTEXT DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the causes of action alleging legal malpractice, breach of contract, and fraud were properly dismissed. The court further found that the cause of action alleging a violation of Judiciary Law 487 should have been dismissed as well, noting that allegations of negligence do not meet the “intent to deceive” element of a Judiciary Law action:

Contrary to the defendants' contention, the cause of action alleging a violation of Judiciary Law § 487 was not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” … .

Nevertheless, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law § 487 … . Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “intent to deceive the court or any party” … . Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016[b]… ). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law § 487 to recover the legal fees incurred. Bill Birds, Inc. v Stein Law Firm, P.C., 2018 NY Slip Op 05743, Second Dept 8-15-18

ATTORNEYS (ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LEGAL MALPRACTICE  (ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (JUDICIARY LAW 487, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 3016 (JUDICIARY LAW 487, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/JUDICIARY LAW 487 (ATTORNEYS, CIVIL PROCEDURE, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs' serving a faulty copy of an order to show cause which did not include the return date should not have been deemed a jurisdictional defect. The defendants appeared on the return date, so there was no prejudice:

Unbeknownst to the plaintiffs, the Kings County Clerk's Office encountered some type of error when scanning and uploading the signed order to show cause to the eCourts system. The digital copy of the order to show cause omitted the page containing the return date of February 27, 2015, among other things, although the remaining pages feature the handwritten notation “2/27/15.” The plaintiffs printed the faulty digital copy without noticing the error and served that copy on the defendants with supporting papers, using the method specified in the order to show cause. * * *

“The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion” … . However, the defect in service here was “merely technical”… . Under these circumstances, given that no substantial right of the defendants was prejudiced, the Supreme Court should have disregarded the irregularity and determined the motion on the merits (see CPLR 2001 … ). Young v City of New York, 2018 NY Slip Op 05793, Second Dept 8-15-18

CIVIL PROCEDURE (OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/RETURN DATE (ORDER TO SHOW CAUSE, OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/ORDER TO SHOW CAUSE (RETURN DATE, OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/CPLR 2001  (OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))

FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT).

The Second Department noted that plaintiff's failure to attach the pleadings to plaintiff's motion for summary judgment was not a fatal defect:

The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff's omission … . Sensible Choice Contr., LLC v Rodgers, 2018 NY Slip Op 05790, Second Dept 8-15-18

CIVIL PROCEDURE (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 3212 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 2001 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 3212 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))

, ,

BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS, AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined plaintiff’s motion for summary judgment in this action to cancel and discharge a note and mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 was properly denied, but defendant’ motion to dismiss the complaint pursuant to CPLR 3211 should not have been granted. Plaintiff argued the debt had been accelerated and the statute of limitations for foreclosure had passed, defendant argued it had de-accelerated the debt and the statute had not run.  The court, disagreeing with the 1st Department, noted that the language in a letter to the effect that the failure to cure the delinquency within 30 days “will result in acceleration” of the note does not constitute sufficient notice of the acceleration such that the statute of limitations starts to run. In addition, the court held, as a matter of first impression, standing to bring the foreclosure action is a pre-requisite both for a valid acceleration and a valid de-acceleration of the note:

Courts must … be mindful of the circumstance where a bank may issue a de-acceleration letter as a pretext to avoid the onerous effect of an approaching statute of limitations and to defeat the property owner’s right pursuant to RPAPL 1501 to cancel and discharge a mortgage and note. Here, however, the de-acceleration letter containing a clear and unequivocal demand that the homeowner meet her prospective monthly payment obligations constitutes a de-acceleration in fact and cannot be viewed as pretextual in any way.  …

We hold for the first time in the Appellate Division, Second Department, that just as standing, when raised, is a necessary element to a valid acceleration, it is a necessary element, when raised, to a valid de-acceleration as well.

Here, the de-acceleration notice … does not establish that [defendant] had standing to de-accelerate the earlier demand that the plaintiff’s mortgage debt be paid in its entirety, and no other evidence submitted … demonstrates that it had standing.  Milone v US Bank Natl. Assn., 2018 NY Slip Op 05760, Second Dept 8-15-18

FORECLOSURE (BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))

, , ,

HUSBAND’S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY’S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) husband's counsel should not have been disqualified on the ground she would be a witness, (2) the plenary action seeking to set aside the prenuptial agreement on grounds of duress, coercion, undue influence and unconscionabiltiy is properly joined with the divorce action, (3) and interim attorney's fees are not available for the action to set aside the prenuptial agreement:

Rule 3.7 of the Rules of Professional Conduct… provides that, unless certain exceptions apply, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact” … . In order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party… . Here, the wife failed to demonstrate that [the attorney's] testimony will be necessary to her case … . …

“The trial court has broad discretion in determining whether to order consolidation”(… see CPLR 602[a]). The interests of justice and judicial economy are better served by consolidation or a joint trial in those cases where the actions share material questions of law or fact … . A motion to consolidate or join for trial should be granted absent a showing of prejudice to a substantial right by a party opposing the motion … . …

The Supreme Court should not have awarded the wife interim counsel fees in the sum of $10,000 pursuant to Domestic Relations Law § 237, as that statute does not permit the recovery of fees for legal work performed on nonmatrimonial matters, including where, as here, a party seeks an award of counsel fees incurred in an action to set aside a prenuptial agreement … . Lombardi v Lombardi, 2018 NY Slip Op 05758, Second Dept 8-15-18

FAMILY LAW (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/ATTORNEYS (FAMILY LAW, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CIVIL PROCEDURE (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CPLR 602  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CONTRACT LAW (PRENUPTIAL AGREEMENT, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/PRENUPTIAL AGREEMENT  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))

,

PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT).

n a breach of contract action too complex to fairly summarize here, the Second Department determined plaintiff was not entitled to prejudgment interest pursuant to CPLR 5001 (a) because plaintiff did not demonstrate when the damages were incurred:

We agree with the Supreme Court’s determination that the plaintiff was not entitled to prejudgment interest. CPLR 5001(a) provides that interest shall be recovered upon a sum awarded for a breach of contract. CPLR 5001 further mandates that “[i]nterest shall be computed from the earliest ascertainable date the cause of action existed” (CPLR 5001[b]). “Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date” (CPLR 5001[b]…). CPLR 5001 further provides that “[t]he date from which interest is to be computed shall be specified in the verdict, report or decision” (CPLR 5001[c]). With limited exception, “[i]f a jury is discharged without specifying the date, the court upon motion shall fix the date” (id.). The party seeking prejudgment interest bears the burden of demonstrating the date from which interest should be computed… .

Here, the plaintiff failed to demonstrate when the damages were incurred. Under the particular circumstances of this case, the Supreme Court’s determination that the damages were not incurred until the jury rendered its verdict was warranted … . Kachkovskiy v Khlebopros, 2018 NY Slip Op 05671, Second Dept 8-8-18

CIVIL PROCEDURE (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/CPLR 5001 (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/PREJUDGMENT INTEREST (PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/INTEREST (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/CONTRACT LAW (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy