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AFTER THE JUDGMENT OF FORECLOSURE AND THE EXPIRATION OF THE TIME FOR APPEAL, DEFENDANT, PRIOR TO THE SALE OF THE PROPERTY, PURSUANT TO CPLR 2221, MOVED TO VACATE THE JUDGMENT BASED ON THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE MOTION SHOULD NOT HAVE BEEN DENIED AS UNTIMELY; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant in this foreclosure action used the proper procedure for attempting to apply the Foreclosure Abuse Prevention Act (FAPA) retroactively. The foreclosure action had already proceeded to judgment and the time for appeal had expired. The only way to effectuate the FAPA at that point is a motion to renew (CPLR 2221) made before the sale of the property. Defendant’s CPLR 2221 motion should not have been denied as untimely:

The court granted plaintiff a judgment of foreclosure and sale … . Defendant moved pursuant to CPLR 2221 to vacate the judgment based on FAPA.

The court should not have determined that the motion was untimely. Generally, a CPLR 2221 motion based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has fully expired … . However, following the Court of Appeals’ decision in Article 13 LLC v Ponce De Leon Fed. Bank ( —NY3d—, 2025 NY Slip Op 06536 [2025]), this Court held that “the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted” … . Defendant followed this precise process.

Accordingly, this matter is remanded for further proceedings, including consideration of the parties’ arguments concerning whether retroactive application of FAPA would violate the Takings and Due Process Clauses … . Bank of N.Y. Mellon v Adam P10tch, LLC, 2026 NY Slip Op 02596, First Dept 4-28-26

Practice Point: After the judgment of foreclosure and the expiration of the time for appeal, but before the sale of the property, a defendant can still make a motion to vacate the judgment based on the FAPA (CPLR 2221).

 

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THE RESPONDENT CORRECTION OFFICER PARTICIPATED IN A GANG ASSAULT ON AN INMATE WHICH RESULTED IN THE INMATE’S DEATH; THE CORRECTION OFFICER WAS ACQUITTED OF CRIMINAL CHARGES; THE NY STATE POLICE BROUGHT THIS PROCEEDING SEEKING AN “EXTREME RISK PROTECTION ORDER” (ERPO) WHICH PROHIBITS RESPONDENT FROM POSSESSING FIREARMS; SUPREME COURT DENIED THE PETITION; THE FOURTH DEPARTMENT GRANTED IT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined Supreme Court should have issued an “extreme risk protection order” (ERPO) which preclude the respondent correction officer from possessing firearms. The respondent was involved in a gang assault on an inmate which caused the inmates death. The respondent had been acquitted of the related criminal charges:

… [T]he burden was on petitioner [the New York State Police] under the circumstances here to establish, by clear and convincing evidence, that respondent posed “a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm” (Mental Hygiene Law § 9.39 [a] [2]; see CPLR 6343 [2]). Petitioner met that burden by establishing that respondent actively participated in the assault of a restrained incarcerated individual by grabbing the victim by the chest and holding him down while other officers kicked the victim in the abdomen and groin (see CPLR 6342 [2] [a]). Indeed, that conduct is particularly egregious in this case because “DOCCS regulations require correction officers to exercise ‘[t]he greatest caution and conservative judgment’ in determining whether physical force against an inmate is necessary” ( … 7 NYCRR 251-1.2 [a]), inasmuch as “[c]orrection officers are tasked with the formidable and critical responsibility of protecting the safety of inmates and coworkers while maintaining order in correctional facilities” (id. at 385). Respondent adduced no evidence to the contrary at the hearing. * * *

We therefore reverse the order, reinstate the application, grant the application insofar as it seeks the issuance of a final ERPO, and remit the matter to Supreme Court for further proceedings pursuant to CPLR 6343 (3). Matter of New York State Police v Galliher, 2026 NY Slip Op 02510, Fourth Dept 4-24-26

Practice Point: The “Extreme Risk Protection Act” (CPLR 6343) provides a mechanism to prohibit the possession of firearms. Here a correction officer participated in a gang assault on an inmate which resulted in the inmate’s death. The correction officer was acquitted of criminal charges and could therefore possess firearms. The NY State Police brought this proceeding for a “final extreme risk protection order” (ERPO) prohibiting the correction officer from possessing firearms.

 

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PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to a call that a man (the patient) had fallen and could not get up. According to a witness, plaintiff thought the patient was faking, ridiculed him and offered only minimal assistance. The patient submitted a complaint to the defendant (the Department of Health). The defendant served plaintiff with a notice of hearing and statement of charges indicating plaintiff may be subject fines and revocation of the EMT license. Plaintiff then sued defendant seeking a declaration that he was entitled to a jury trial:

The Seventh Amendment to the US Constitution preserves the right of trial by jury in suits at common law where the value of the controversy exceeds $20 (see US Const, 7th Amend). Longstanding precedent from the Supreme Court of the United States holds that the Seventh Amendment “applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same” … . * * *

The NY Constitution provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2). * * *

… [P]laintiff asserts that defendant, in essence, seeks to punish him for tortious conduct through the imposition of a civil penalty, which traditionally entailed a jury trial … . What plaintiff fails to directly confront, however, is that the nature of this proceeding is predicated on a violation of the statutory scheme that regulates plaintiff’s professional license and that the remedies sought are tethered thereto. … Specifically, Public Health Law article 30 places the responsibility on defendant to regulate the provision of emergency medical services in the state (see Public Health Law §§ 3000-3034) and, in furtherance of that responsibility, defendant has promulgated regulations governing the training, examination and licensing of EMTs … .Ball v New York State Dept. of Health, 2026 NY Slip Op 02494, Third Dept 4-23-26

Practice Point: Plaintiff, an EMT, after a complaint from a patient, was facing a Department of Health hearing at which his EMT license could be revoked. Plaintiff unsuccessfully sought a declaration that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution and Article I, section 2 of the NY Constitution.

 

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MOTHER, WHO NOW RESIDES IN NEW YORK, MOVED TO MODIFY A TEXAS CUSTODY ORDER; BECAUSE TEXAS DID NOT CEDE JURISDICTION AND FATHER RESIDES IN TEXAS, FAMILY COURT DID NOT HAVE JURISDICTION; ALTHOUGH FAMILY COURT COULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND COMMUNICATED WITH THE TEXAS COURT, IT DID NOT (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined the judge did not have jurisdiction to grant mother’s petition to modify custody. The original custody order was issued in Texas, where father resides. Mother and child, with the permission of the Texas court, now reside in New York:

This case presents the difficult situation faced by a judge addressing a petition by a party who seeks to modify a custody order issued by a court of another state. Under the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] (Domestic Relations Law Art. 5-A, §§ 75 — 78-a), even where New York has become the child’s “[h]ome state” (Domestic Relations Law §75-a[7]), a New York judge does not have jurisdiction to modify a custody order issued by a foreign state unless either: 1) the foreign state cedes jurisdiction; or 2) neither the parents nor the child continue to reside in the foreign state (Domestic Relations Law § 76-b). Since neither of these situations was present in this case, Family Court had no jurisdiction to modify the custody order before it. Alternatively, if the New York judge determines that it is necessary to protect a child, sibling or parent, the court may take temporary emergency jurisdiction, communicate with the foreign court, and issue a time-limited order as necessary to protect the child and t0 permit the party seeking a modification to request it in the foreign court (Domestic Relations Law § 76-c). Here, since Family Court failed to communicate with the foreign court and failed to specify a time-limited duration for its order, it also did not appropriately take emergency jurisdiction. * * *

… [H]ad Family Court recognized that Texas had exclusive, continuing jurisdiction over its custody order that the mother sought to modify, it could have contacted the Texas court in order to determine whether the Texas court would relinquish jurisdiction, thus permitting Family Court to exercise jurisdiction to modify the Texas custody order pursuant to Domestic Relations Law § 76-b. If the Texas court did not agree to relinquish jurisdiction, Family Court could then determine whether it should take emergency jurisdiction and issue a time-limited order pursuant to Domestic Relations Law § 76-c. Matter of Natalie P. v Steven L.R., 2026 NY Slip Op 02458, First Dept 4-23-26

Practice Point: A New York court does not have jurisdiction to modify an out-of-state custody order unless the foreign state cedes jurisdiction or no party continues to reside in the foreign state.

 

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DEFENDANT IN THIS FORECLOSURE TRANSFERRED THE SUBJECT PROPERTY TO A THIRD PARTY DURING THE PROCEEDINGS WHICH ORDINARILY WOULD DIVEST DEFENDANT OF STANDING; HOWEVER, PLAINTIFF DID NOT WAIVE A DEFICIENCY JUDGMENT AND THE TIME FOR SEEKING A DEFICIENCY JUDGMENT HAD NOT PASSED; BECAUSE DEFENDANT RETAINED AN INTEREST IN DEFENDING AGAINST A DEFICIENCY JUDGMENT, DEFENDANT HAD STANDING TO ARGUE THE RPAPL 1304 NOTICE WAS JURISDICTIONALLY DEFECTIVE; THE NOTICE ARGUMENT, HOWEVER, WAS REJECTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant in this foreclosure action had standing to argue the RPAPL 1304 notice of foreclosure was jurisdictionally defective, despite defendant’s transfer of the subject real property during the foreclosure proceedings. Plaintiff had not waived a deficiency judgment and the time for seeking one had not elapsed. Therefore defendant still had an interest in defending the action, i.e., defendant had standing to contest the notice. The First Department rejected defendant’s notice argument:

It is well settled that a defendant lacks standing to defend the action where it transfers the mortgaged property to a third party during the foreclosure action and the plaintiff waives its right to a deficiency judgment * * *.

… [I]n this case, plaintiff chose not to waive a deficiency judgment and its time to move for a deficiency judgment has not yet expired. Because [defendant] is subject to a potential deficiency judgment and is a debtor on the underlying mortgage, he has an interest in defending the action notwithstanding that he transferred the mortgaged property … and as a result, no longer has the right to redeem the property. Nationstar Mtge. LLC v Vassi, 2026 NY Slip Op 02375, First Dept 4-21-26

Practice Point: If the time for seeking a deficiency judgment in a foreclosure has not passed, a defendant who transferred the subject property to a third party during the foreclosure proceedings still has standing, i.e., defendant has an interest in defending against a deficiency judgment. However, if the plaintiff had waived a deficiency judgment defendant would have lost standing.

 

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PLAINTIFF’S MOTION TO DEEM A NOTICE OF CLAIM TIMELY SERVED IN THIS FALSE ARREST AND BATTERY ACTION AGAINST THE CITY DEFENDANTS SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EXCUSE FOR LATE FILING WAS INADEQUATE; PLAINTIFF DID NOT SHOW THE CITY DEFENDANTS HAD TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM; AND PLAINTIFF DID NOT SHOW THE CITY WAS NOT PREJUDICED BY THE 11-MONTH DELAY IN FILING (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to deem a notice of claim timely served should not have been granted. The excuse for failing to timely file was not sufficient, plaintiff failed show the city defendants had timely knowledge of the claim, and plaintiff did not demonstrate the city defendants were not prejudiced the the 11-month delay in filing the notice:

Plaintiff’s averment that he was unaware of the time limits necessary to file a notice of claim and initially did not retain counsel after being released from custody because he was focusing on the criminal charges against him are not acceptable excuses for failing to file a timely notice of claim … .

Furthermore, plaintiff failed to submit any evidence establishing that defendants acquired actual knowledge of the essential facts constituting the claims within 90 days of the accrual of the claims or within a reasonable time thereafter … . Plaintiff’s allegations that NYPD officers participated in his false arrest and detention and that they assaulted and battered him do not satisfy plaintiff’s burden of establishing that defendants acquired actual knowledge of the essential facts because his allegations do not constitute facts or evidence … . Plaintiff’s allegation that defendants must have records regarding his arrest, detention, and prosecution is also unavailing, as “the alleged existence of records does not suffice to establish actual knowledge” … .

Since plaintiff failed to make an initial showing that defendants were not prejudiced by the delay of about 11 months in filing the notice of claim, the burden never shifted to defendants to make a particularized showing of prejudice to their ability to defend on the merits … . Waddell v City of New York, 2026 NY Slip Op 02357, First Dept 4-16-26

Practice Point: Consult this decision for insight into the factors a court will consider when determining whether a late notice of claim should be allowed.

 

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PLAINTIFF SUED A CHURCH ALLEGING THE CHURCH HELD PROPERTY IN TRUST FOR PLAINTIFF AND THE CHURCH WRONGFULLY OUSTED PLAINTIFF FROM THE PROPERTY; RESOLUTION OF THE SUIT WOULD INVOLVE NEUTRAL PRINCIPLES OF LAW, NOT RELIGIOUS PRINCIPLES; THEREFORE, THE LAWSUIT WAS NOT PRECLUDED BY THE FIRST AMENDMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the lawsuit concerning ownership of church property was not precluded by the First Amendment because the suit could be decided by applying neutral principles of civil law, not religious principles:

The complaint alleged, among other things, that Synod held the church property in trust for the plaintiff, as the beneficial owner, and that Synod wrongfully ousted the plaintiff from the church property in March 2020 following a series of disputes between the plaintiff and Synod. Synod moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, arguing, inter alia, that resolution of the causes of action requires review of ecclesiastical matters over which the Supreme Court lacked subject matter jurisdiction. …

“‘The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs'” … . “However, a court may resolve church property disputes ‘when the case can be decided solely upon the application of neutral principles of . . . law, without reference to any religious principle'” … . “‘The neutral principles of law approach requires courts to apply objective, well-established principles of secular law to the issues,’ and ‘[i]n doing so, courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine'” … .

Here, contrary to Synod’s contention, it failed to demonstrate that the causes of action cannot be resolved solely upon the application of neutral principles of law, without reference to any religious principle … . Lutheran Church of the Risen Christ, Mo. Synod v Atlantic Dist. of the Lutheran Church Mo. Synod, 2026 NY Slip Op 02260, Second Dept 4-15-26

Practice Point: If a lawsuit against a church involves ownership of property and can be decided based on neutral principles of law (not religious principles) the suit is not precluded by the First Amendment and can be brought in state court.

 

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PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED MOTHER TO “STAY AWAY” FROM FATHER AND CHILD; FATHER ASKED THE POLICE FOR HELP IN SERVING THE ORDER AND PICKING UP THE CHLID; MOTHER WOULD NOT LET THE POLICE INTO HER HOME; DISTRICT ATTORNEYS ADVISED THAT THE POLICE COULD NOT ENTER MOTHER’S HOME; THE NEXT DAY MOTHER MURDERED THE CHILD; THE COMPLAINT AGAINST THE MUNICIPAL DEFENDANTS SHOULD NOT HAVE BEEN DIISMISSED; PLAINTIFF DEMONSTRATED A SPECIAL RELATIONSHIP WITH THE MUNICIPALITY AND THE MUNICIPALITY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Taylor, determined the negligence and wrongful death action against the municipal defendants should not have been dismissed, and plaintiff’s motion for leave to amend the notice of claim or leave to file a late notice of claim should have been granted. Plaintiff father was granted sole custody of his child in an order which required mother to “stay away” from father and the child. Plaintiff asked the police for help in serving the order on mother and picking up the child. The police attempted to serve the order, but mother slammed the door and would not let them in. District attorneys were then contacted for advice but determined the police could not enter mother’s home. The next day the police were called to mother’s home where the child was found deceased. Mother was convicted of murdering the child. The Second Department held that there was a special relationship between plaintiff and the municipality and the municipality was not entitled to governmental function immunity: The opinion is too complex to fairly summarize here:

To establish the existence of a special relationship, a plaintiff is required to prove four elements, also referred to as “the Cuffy factors” or “the Cuffy test,” namely:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 …). * * *

Generally, the “decision to arrest an individual involves the exercise of discretion . . . and thus is cloaked with governmental immunity” … . However, here, in the face of what was, in effect, a temporary order of protection, the defendant police officers became, at a minimum, “obligated to respond and investigate” … . Therefore, the Village defendants have not conclusively established that their actions were purely discretionary … . Boyd v Village of Mamaroneck, 2026 NY Slip Op 02239, Second Dept 4-15-26

Practice Point: Consult this opinion for insight into what constitutes a “special relationship” between a plaintiff and a municipality and when a municipality is protected from liability in negligence by governmental function immunity.

 

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THE JUDGE SHOULD NOT HAVE GRANTED MOTHER A SUSPENDED JUDGMENT IN THIS NEGLECT PROCEEDING; THE SERIOUSNESS OF MOTHER’S CONDUCT WAS NOT ACKNOWLEDGED BY THE JUDGE (FIRST DEPT).

The First Department, reversing Family Court, determined the judge should not granted a suspended judgment in this neglect proceeding:

The court abused its discretion in granting the mother a suspended judgment. A court should not vacate a neglect finding except upon a determination that doing so serves the child’s best interests, including “consideration of a parent’s ability to supervise a child and eliminate any threat of future abuse or neglect” … . “[A]t its core, a suspended judgment affords a respondent the opportunity to correct his or her neglectful actions” … . Courts considering whether to grant a suspended judgment should examine four factors: “(1) the respondent’s prior child protective history; (2) the seriousness of respondent’s offense; (3) respondent’s remorse and acknowledgment of the abusive or neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court orders” (id. at 12 [internal quotation marks omitted]).

Here, Family Court failed to consider the second, third and fourth factors adequately. The trial court addressed the first factor by noting that the mother had no prior involvement with the child welfare system. As to the second factor, although the mother admitted inflicting excessive corporal punishment on [the child] on more than one occasion and causing him injury, Family court’s decision does not acknowledge the seriousness of the mother’s conduct. Matter of N.G. (Angelica T.), 2026 NY Slip Op 02198, First Dept 4-14-26

Practice Point: Consult this decision for insight into the factors Family Court must consider before granting a suspended judgment in a neglect proceeding. Here it was not enough that mother had no prior involvement with the child welfare system. The seriousness of her conduct must be considered.​

 

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THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Golia, determined the county charter, which allowed the county to “opt out” of the constructive-notice provisions in the Highway Law, did not supersede the Highway Law. Plaintiff, a bicyclist, was injured when his bicycle struck a pothole on a county road. Supreme Court denied the county’s summary judgment motion which argued the county charter eliminated the constructive-notice theory of liability. The Second Department affirmed the denial and further held that the county was required to show both a lack of written notice and a lack of constructive notice of the dangerous condition to warrant summary judgment:

In an action to recover damages for personal injuries sustained in a bicycle accident, we are asked to determine whether the defendant, County of Suffolk, may enact legislation pursuant to the Municipal Home Rule Law that supersedes a New York State law. Specifically, the County contends that, through the enactment of Suffolk County Charter § C8-2(A)(2), it may supersede the provision of Highway Law § 139(2) that allows for an action to be maintained against a county, regardless of prior written notice, where the county had constructive notice of the alleged defective condition, pursuant to Municipal Home Rule Law § 10(1)(ii)(a)(5). We hold that Suffolk County Charter § C8-2(A)(2)(iii) contradicts Highway Law § 139(2) and, thus, the County may not, as it contends, “exercise [its] right to opt out” of the requirements of said statute. The County also contends that, in effect, even if constructive notice could be a theory of recovery in the instant action, the plaintiff bears the burden of establishing in the first instance that the County had constructive notice of the alleged defective condition. In other words, the County contends that its burden on this motion for summary judgment was only to show that it lacked prior written notice of the allegedly defective condition before the burden shifted to the plaintiff to demonstrate that the County had constructive notice of the condition. We hold, consistent with our precedent, that, when moving for summary judgment dismissing the complaint in cases invoking Highway Law § 139(2), the County must establish, prima facie, that it lacked both prior written notice and constructive notice of the alleged defective condition before the burden shifts to the plaintiff to raise a triable issue of fact in that regard or with regard to whether another exception applies. Romas v County of Suffolk, 2026 NY Slip Op 02142, Second Dept 4-8-26

Practice Point: A county charter provision which contradicts the New York State Highway Law does not supersede the provisions of the Highway Law.

 

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