You are here: / Civil Procedure
, , ,

IN THIS LABOR LAW ARTICLE 6 AND BREACH OF CONTRACT ACTION FOR UNPAID COMMISSIONS, PLAINTIFF, WHO SUED GAIA PRODUCE AS HIS EMPLOYER, SOUGHT TO AMEND THE COMPLAINT TO ADD ANOTHER PARTY AS HIS EMPLOYER; BASED UPON THE DEFINITION OF “EMPLOYER” IN THE LABOR LAW, THE PROPOSED AMENDMENT WAS PROPER AND SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to amend the complaint to add a defendant, Nehoumovich. The suit against plaintiff’s employer, Gaia Produce, alleged the failure to pay commissions in violation of Labor Law article 6. Plaintiff alleged Nehoumovich was also plaintiff’s employer. Based on the definition of “employer” in the Labor Law, the Second Department held the proposed amendment was not palpably insufficient or patently devoid of merit:

“Article 6 of the Labor Law sets forth a comprehensive set of statutory provisions enacted to strengthen and clarify the rights of employees to the payment of wages” … . “Labor Law § 190(3) broadly defines an ’employer’ as ‘any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service'” … . “Under the ‘economic reality’ test, the relevant factors include whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records” … . The Supreme Court is “also free to consider any other factors it deems relevant to its assessment of the economic realities” … .

Here, the proposed amendment to add Nahoumovich as a defendant was not palpably insufficient or patently devoid of merit … . The proposed amended complaint alleged, inter alia, that Nahoumovich was “responsible for . . . hiring and firing,” that he “supervised [the] [p]laintiff,” “assign[ed] [the plaintiff] responsibilities concerning negotiating, pricing, and collecting,” that he “was involved in determining the terms and conditions of [the plaintiff’s] employment” and “how [the plaintiff’s] commissions were calculated,” and that he “overs[aw] commission reports.” The plaintiff further submitted a transcript of his own deposition testimony regarding those allegations, and that of Nahoumovich, who acknowledged, among other things, that he made certain hiring recommendations, supervised the plaintiff, provided the plaintiff with directives, and set up the commission structure. The fact that Nahoumovich did not sign the plaintiff’s paychecks is not dispositive … . Under the totality of the circumstances presented here, the plaintiff plausibly alleged that Nahoumovich was an “employer” within the meaning of Labor Law § 190(3) … . Sproule v Gaia Produce, LLC, 2026 NY Slip Op 04971, Second Dept 8-12-26

Practice Point: Consult this decision for insight into the criteria for determining whether a party is an “employer” within the meaning of the Labor Law in an action seeking unpaid commissions.

 

, ,

IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

,

PLAINTIFF WAIVED THE OBJECTION TO A LATE ANSWER BY FAILING TO REJECT THE ANSWER WITHIN 15 DAYS OF RECEIPT; DEFENDANTS MOTION TO COMPEL ACCEPTANCE OF THE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff waived any objection to the defendants’ late answer by failing to reject the answer within 15 days of receipt:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.” Here, the plaintiff’s undisputed failure to reject the defendants’ answer within the 15-day statutory time frame constituted a waiver of the late service and the default … . Accordingly, the Supreme Court should have granted the defendants’ motion to compel the plaintiff to accept their late answer and denied the plaintiff’s cross-motion for leave to enter a default judgment against the defendants … . PNC Bank, N.A. v Kane, 2026 NY Slip Op 04967, Second Dept 8-12-26

Practice Point: If plaintiff wishes to object to receipt of a late answer, plaintiff must reject the answer within 15 days or the objection is waived and the defendant can move to compel acceptance.

 

, ,

IN THIS PUBLIC-BEACH SWIMMING-ACCIDENT CASE, THE PETITIONER SHOULD NOT HAVE BEEN GRANTED PERMISSION TO FILE A LATE NOTICE OF CLAIM; THE TOWN DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM; THE PETITIONER DID NOT HAVE A GOOD EXCUSE; THE TOWN MADE A PARTICULARIZED SHOWING OF PREJUDICE; AND THE CLAIM WAS CLOSE TO MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to serve a late notice of claim against the town in this swimming-injury case should not have been granted. Petitioner was floating 100 yards beyond the designated swimming area at a town beach with the back of his head toward the ocean when a wave crashed over him, forcing him to the ocean floor and causing a severe spinal cord injury. The Second Department went through all the criteria for allowing late notice and found that the facts fell short:

… [T]he petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. “‘[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'” … . “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” … . * * *

… [I]n light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys … . * * *

… [T]he Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” … . The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident. * * *

… [T]he petitioner’s claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless … . Matter of Cataldo v Town of E. Hampton, 2026 NY Slip Op 04946, Second Dept 8-12-26

Practice Point: Consult this decision for a concise factual explanation for the denial of permission to file a late notice of claim.

 

, ,

PETITIONER POLICE OFFICER WAS TERMINATED FOR MISCONDUCT AND SOUGHT TO BRING A CPLR ARTICLE 78 PROCEEDING; THE CITY CHARTER REQUIRED THE FILING OF A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR ANY NONTORT ACTION AGAINST THE CITY; PETITIONER FAILED TO TIMELY FILE A NOTICE OF CLAIM; BECAUSE THE CHARTER MAKES NO PROVISION FOR SERVING A LATE NOTICE OF CLAIM IN NONTORT ACTIONS, SUPREME COURT DID NOT HAVE AUTHORITY TO GRANT PETITONER’S REQUEST FOR PERMISSION TO SERVE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to grant the petitioner, a police officer terminated for misconduct, an extension of time to file a late notice of claim against the city. The city charter did not have a provision for service of a late notice for nontort actions. Petitioner was attempting to bring a CPLR article 78 proceeding contesting his termination:

Section C6.47(A) of the City Charter for the City of Newburgh provides that, for nontort claims, no action or special proceeding shall be maintained against the City unless “a written verified claim . . . was served on the City . . . within three months after the accrual of such claim.” The service of a notice of claim is thus a condition precedent to maintaining an action or proceeding against the City … . “[S]tatutory requirements conditioning suit against a governmental entity must be strictly construed” … .

Here, it is undisputed that the petitioner failed to serve a notice of claim within three months after his claim accrued, as required by section C6.47 of the City Charter for the City of Newburgh. Moreover, unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims … . Consequently, since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the petitioner’s motion for leave to serve a late notice of claim … . Matter of Canario v City of Newburgh, 2026 NY Slip Op 04945, Second Dept 8-12-26

Practice Point: If the controlling legislation, here a city charter, makes no provision allowing a party to seek permission to serve of a late notice of claim, a court cannot grant such permission. Here the city charter did not include a “late notice” provision for nontort actions against the city.

 

,

HERE DEFENDANT’S ANSWER WAS STRICKEN FOR DISCOVERY VIOLATIONS; AT THE INQUEST THE JUDGE SHOULD HAVE CONSIDERED ONLY DAMAGES; THE JUDGE ERRED BY CONSIDERING AN ISSUE WHICH WAS “ADMITTED” BY THE DEFENDANT BECAUSE THE ANSWER WAS STRICKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered any substantive issues in this inquest to determine damages after the answer was stricken for failure to comply with discovery orders. Because the answer was stricken, defendant admitted all the traversable allegations in the complaint, including the issue the judge erroneously considered:

“‘A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” … . “The sole issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider the question of whether the defendant caused the damages sustained by the plaintiff” … . At an inquest, the plaintiff bears the burden of setting forth a prima facie case as to damages … .

Here, the Supreme Court erred in considering the question of whether the plaintiff signed a satisfaction of mortgage under duress. The defendant’s answer was stricken and as a result, the defendant admitted all traversable allegations in the amended complaint, including the allegation that the satisfaction of mortgage was signed under an implied threat of physical harm. The sole issue to be determined at the inquest was the extent of damages sustained by the plaintiff (see CPLR 3215[a] …). Sabella v Keora Realty, LLC, 2026 NY Slip Op 04884, Second Dept 8-5-26

Practice Point: When an answer is stricken every traversable allegation in the complaint is admitted by the defendant and the only remaining issue is damages.​

 

,

ONCE THE PARTIES ENTERED A STIPULATION OF DISCONTINUANCE, SUPREME COURT WAS DIVESTED OF JURISDICTION; THEREFORE SUPREME COURT DID NOT HAVE JURISDICTION TO CONSIDER THE SUBSEQUENT MOTION TO VACATE THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court had been divested of jurisdiction over the case when the parties entered a stipulation of discontinuance. Therefore Supreme Court did not have jurisdiction to consider the motion to vacate the stipulation of discontinuance:

“‘A motion must be addressed to a pending action'” … . A court lacks jurisdiction to entertain a motion after the action has been unequivocally terminated by the execution of an express, unconditional stipulation of discontinuance … “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain the plaintiff’s motion, among other things, to vacate the stipulation of discontinuance and to restore the action to the court’s active calendar. The action was unconditionally discontinued by the stipulation of discontinuance executed by the plaintiff and the defendant and filed with the court, in which the plaintiff withdrew the complaint and discontinued all claims interposed in the action, and the stipulation was silent as to the court’s retention of jurisdiction for any purpose … . Accordingly, under the circumstances, the plaintiff’s requested relief was not available by way of a motion and could only be obtained by commencing a plenary action … . HSBC Bank USA, N.A. v Rini, 2026 NY Slip Op 04845, Second Dept 8-5-26

Practice Point: Here the parties entered a stipulation of discontinuance, thereby divesting the Supreme Court of jurisdiction over the case. Supreme Court therefore could not consider the subsequent motion to vacate the stipulation.

 

DEFENDANT’S MOTION TO VACATE PURSUANT TO CPLR 5015(A) FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN DENIED; DEFENDANT WAIVED THE LACK-OF-JURISDICTION DEFENSE BY SUBMITTING A LETTER TO SUPREME COURT ADDRESSING THE MERITS (SECOND DEPT).

The Second Department, reversing the grant of defendant’s motion to vacate pursuant to CPLR 5015(a) for lack of personal jurisdiction, determined defendant waived the lack-of-jurisdiction defense by submitting a letter to Supreme Court addressing the merits of the action and stating he would represent himself:

“A defendant may waive the issue of . . . personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” … . “A defendant may appear informally by actively litigating the action before the court” … . “When a party becomes ‘an actor in a suit’ is often a question of degree and of evaluation of the particular facts … . By participating in a lawsuit on the merits, a party “indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … .

Here, the defendant waived the defense of lack of personal jurisdiction by submitting a letter to the Supreme Court addressing the merits of the action and stating that he would represent himself in the action, all without objecting to the court’s jurisdiction … . Moreover, more than four years after the commencement of this action, the defendant successfully moved to restore the action to the active calendar and sought further affirmative relief without moving to dismiss the complaint for lack of personal jurisdiction … . Foote v Foote, 2026 NY Slip Op 04842, Second Dept 8-5-26

Practice Point: There is no time limit for a motion to vacate pursuant to CPLR 5015(a) for lack of personal jurisdiction. Here, however, defendant waived the defense by participating in the action.

 

, , ,

PLAINTIFFS PROPERLY ALLOWED TO AMEND THE COMPLAINT TO ADD THE INSURER (WHICH PAID PLAINTIFFS FOR THEIR LOSSES) AS A PLAINTIFF UNDER THE RELATION-BACK DOCTRINE (AFTER THE STATUTE OF LIMITATIONS HAD RUN FOR AN INDEPENDENT SUBROGATION ACTION) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined Supreme Court properly allowed plaintiffs to amend the complaint to add the insurer which paid plaintiffs’ losses as a plaintiff. The statute of limitations had passed for a separate subrogation action:

While an application to amend a pleading pursuant to CPLR 3025 lies within the court’s sound discretion, “there is no sound basis in law to grant amendment pursuant to CPLR 3025(c) to add an untimely claim” … . Thus, a pleading cannot be amended to assert a new claim for which the statute of limitations has expired unless the assertion of the new claim is deemed to relate back to an earlier operative pleading that was filed while the new claim still would have been timely (see id.). Whether a new claim relates back to the time of the filing of the earlier pleading is governed by CPLR 203(f), which provides:

“A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.”

In determining whether the original pleading provides the requisite notice of the transactions or occurrences underlying the proposed new claim, a court “should not . . . look[] beyond the four corners of the original pleading” … . * * *

… [T]he “transactions, occurrences, or series of transactions or occurrences” referenced in CPLR 203(f), and to be proved in support of the subrogation claim interposed in the proposed [amended complaint] — defendants’ management of the renovation project — are precisely the same “transactions, occurrences, or series of transactions or occurrences” alleged in the earlier complaints. As plaintiffs point out, the only effect of the assertion of the subrogation claim is to shift the claim for a portion of the damages allegedly caused by defendants’ alleged wrongdoing from the … plaintiffs to … their insurer. 217 Trust v VIR Constr., Inc, 2026 NY Slip Op 04824, First Dept 7-30-26

Practice Point: Here plaintiffs’ insurer, which paid plaintiffs for losses which are the subject of the complaint, was properly added to the complaint as a plaintiff, after the statute of limitations for a separate subrogation action had passed, pursuant to the relation-back doctrine.

 

,

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT WHEN PLAINTIFF FAILED TO MEET A DEADLINE FOR A DEPOSITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint when plaintiff failed to meet a deadline for a deposition:

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading . . . , where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” … . “[T]he drastic remedy of striking a pleading . . . pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” … . Further, due process generally requires “notice and an opportunity to be heard before a court may impose such drastic remedies for discovery noncompliance” … .

Here, the plaintiff was not given adequate notice and opportunity to be heard prior to imposition of the drastic sanction of dismissal of the complaint, “including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious” … . The defendants did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to appear for his deposition, nor did the Supreme Court make its own motion or include language in any prior order warning that noncompliance would result in sanctions … . Winchcombe v Ridgeline Constr. Corp., 2026 NY Slip Op 04794, Second Dept 7-29-26

Practice Point: The appellate courts do not like sua sponte dismissals of complaints without notice or an opportunity to be heard.

 

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