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FAMILY COURT ERRONEOUSLY DIRECTED SERVICE UPON MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING “BY EMAIL” WHICH DOES NOT COMPLY WITH DOMESTIC RELATIONS LAW 75-G; ALLEGATIONS THAT MOTHER DESTROYED EVIDENCE OF SERVICE AND WAS AWARE OF THE PROCEEDINGS ARE IRRELEVANT; THE COURT NEVER ACQUIRED JURISDICTION OVER MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court never acquired jurisdiction over mother in this modification of custody proceeding. Father was directed to serve mother by email and by Initiating international service through the US Central Authority, a method not compliant with Domestic Relations Law 75-g:

That statute requires that notice be given by personal delivery or by any form of mail requesting a receipt and that the court may only direct an alternative form of service upon a finding that “service is impracticable” by personal delivery or by mail. However, the father’s motion papers contained no indication that personal service or service by any form of mail requesting a receipt was “impracticable” (Domestic Relations Law § 75-g[1][c]). Therefore, the Family Court erred in directing service by email and the court never acquired personal jurisdiction over the mother by the email service that was effectuated.

The father claims that the mother was personally served … . However, the record contains no affidavit of service on the mother. The father’s assertion in his brief that the mother destroyed evidence of service does not establish that lawful service was made, as it was his responsibility to prove that service was properly carried out in the first place … . Moreover, the fact that the mother became aware of the proceeding at some point … does not confer jurisdiction if there has not been compliance with the statutorily prescribed methods of service of process … . Matter of John F.B. v Maria U., 2025 NY Slip Op 06905, First Dept 12-11-25

Practice Point: Here father was directed by the court to serve mother by “email” which does not comply with Domestic Relations Law 75-g. The court never acquired jurisdiction over mother, despite her awareness of the proceedings.

 

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HERE SUPREME COURT CORRECTLY REFUSED TO VACATE THE DEFAULT JUDGMENT IN THIS PERSONAL INJURY CASE; BUT THE SECOND DEPARTMENT VACATED THE $385,000 INQUEST-JUDGMENT BECAUSE PLAINTIFF’S TESTIMONY DID NOT SUFFICIENTLY DEMONSTRATE THE EXTENT OF THE INJURIES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court correctly denied defendant’s motion to vacate a default judgment in a personal injury case because she failed to provide a reasonable excuse. Plaintiff alleged he stepped in a hole on defendant’s property, twisted his foot and fell. But the $385,000 damages judgment was vacated by the Second Department because plaintiff’s testimony at the inquest was deemed insufficient to demonstrate the extent of the injuries. A new inquest was ordered:

… [A]lthough this Court is not relieving the defendant of her default, “[a]n unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Here, the plaintiff’s vague testimony at the inquest was insufficient to determine to what extent the plaintiff’s injuries were attributable to the subject accident and, therefore, whether the amount awarded was warranted. Thus, under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the judgment, and we remit the matter to the Supreme Court, Nassau County, for a new inquest on the issue of damages, and for the entry of an appropriate amended judgment thereafter … . Albano v Roehrig, 2025 NY Slip Op 06839, Second Dept 12-10-25

Practice Point: Despite losing a motion to vacate a default judgment, a defendant may still successfully move to vacate a judgment awarded after an inquest on the ground the evidence offered at the inquest did not sufficiently demonstrate the extent of the plaintiff’s injuries.

 

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WHEN THE JUDGE’S LAW CLERK SPOKE TO THE JURORS ABOUT A JURY NOTE WHILE THE JURORS WERE DELIBERATING, THE CLERK DISCUSSED CONCEPTS OF NEGLIGENCE, FAULT AND CERTAIN FACTS OF THE CASE; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial after a defense verdict, determined that the law clerk’s discussion with the jurors while they were deliberating, during which concepts of negligence and fault and certain facts were discussed, constituted interference with the deliberations and usurpation of the role of the court. The motion to set aside the verdict should have been granted:

Following the verdict, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of liability in the interest of justice and for a new trial. In an affirmation in support of the motion, the plaintiffs’ counsel stated that he had learned, after the jury was discharged, that when the clerk went to speak to the jurors about writing the actual question on the form, the clerk improperly communicated with the jurors in a way that went beyond the Supreme Court’s instructions. In further support of their motion, the plaintiffs submitted an affidavit from a former juror (hereinafter the first juror) who averred, among other things, that the clerk had discussed with the jurors the concepts of negligence and fault, as well as certain facts about the case. The first juror averred that the clerk was in the jury room with the jurors for approximately three to five minutes, and that following that discussion, the jurors “did not feel it [was] necessary to submit further questions to the Court.” * * *

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “Litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments [have] deprived [a] party of a fair trial or unduly influenced a jury” … .

… [T]he clerk’s conduct cannot be found to be harmless. By offering opinions and/or explanations on the meaning of the legal concepts at issue in the trial, the clerk impermissibly interfered in the jury’s deliberations and usurped the role of the court to, in consultation with counsel, instruct the jurors on the law applicable to the facts. Saporito-Elliott v United Skates of Am., Inc., 2025 NY Slip Op 06886, Second Dept 12-10-25

Practice Point: The law clerk’s discussion with the deliberating jurors about concepts of negligence, fault and certain facts of the case interfered with the deliberations and usurped the role of the court. The verdict, therefore, must be set aside.

 

HERE THE SUBPOENAS SEEKING DISCOVERY FROM A NONPARTY WERE DEFECTIVE IN THAT THEY DID NOT EXPLAIN THE CIRCUMSTANCES OR REASONS FOR THE REQUESTED DISCLOSURE; THEREFORE THE MOTION TO QUASH THE SUBPOENAS SHOULD HAVE BEEN GRANTED WITHOUT ANY NEED ON THE PART OF THE MOVANT TO DEMONSTRATE THE SOUGHT DISCLOSURE IS IRRELEVANT OR FUTILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the subpoenas seeking discovery from a nonparty were defective, therefore the motion to quash the subpoenas should have been granted:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty of “matter material and necessary in the prosecution or defense of an action” in possession of a nonparty, providing the nonparty is apprised of the “circumstances or reasons such disclosure is sought or required” … . “The notice requirement of CPLR 3101(a)(4) ‘obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . “Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, the subpoenas were defective, since neither the subpoenas nor any accompanying documents set forth “the circumstances or reasons [the] disclosure is sought or required” (CPLR 3101[a][4] … . Ruppert v Ruppert, 2025 NY Slip Op 06884, Second Dept 12-10-25

Practice Point: A subpoena seeking disclosure from a nonparty must meet the requirements of CPLR 3101(a)(4) by including an explanation of the circumstances or reasons for the disclosure. If that information is not provided, the subpoena is defective and must be quashed on that ground.

 

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THE PERSONAL PROPERTY IN PLAINTIFF’S RENTED STORAGE FACILITY WAS SOLD AT AUCTION BASED ON PLAINTIFF’S PURPORTED FAILURE TO PAY RENT; WHEN THE DEFENDANT STORAGE FACILITY OWNER REALIZED THE RENT HAD BEEN PAID BY PLAINTIFF’S PARTNER, DEFENDANT RESCINDED THE SALE OF PLAINTIFF’S PROPERTY, WAIVED LATE FEES, RETURNED THE MONEY TO THE BUYER AND ADVISED THE BUYER TO RETURN THE PROPERTY TO PLAINITFF; ALLEGING PROPERTY WAS MISSING, PLAINTIFF SUED UNDER LIEN LAW 182 FOR “WRONGFUL SALE” OF THE PROPERTY; AFTER AN EXTENSIVE STATUTORY ANALYSIS, THE SECOND DEPARTMENT DETERMINED LIEN LAW 182 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR “WRONGFUL SALE” (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, affirming Supreme Court, determined defendant could not maintain an action against defendant storage facility based on a violation of Lien Law section 182. Defendant storage facility had not noticed that payments made by plaintiff’s partner, who rented a separate storage facility, were supposed to be applied to plaintiff’s rent. At the time defendant learned of the payments made by plaintiff’s partner, defendant had sold the items in plaintiff’s storage facility at an auction. Defendant rescinded the sale, waived the assessed late fees, returned the money paid by the buyer of plaintiff’s personal property, and advised the buyer to return the property. Plaintiff then sued for “wrongful sale” pursuant to Lien Law 182, alleging that some of his property was missing. Lien Law 182(7)(a) provides that any person claiming an interest goods to be sold at auction can bring a special proceeding within 10 days of the service of notice of the auction. No such special proceeding was brought by plaintiff. Both Supreme Court and the Second Department held that Lien Law 182 does not create a cause of action for “wrongful sale:”

Here, Lien Law § 182 provides that the remedy where a person “disputes the validity of the lien, or the amount claimed,” is to “bring a proceeding hereunder within ten days of the service of the notice” (id. § 182[7][a]), for which the remedy, if the person who commences the proceeding prevails, is “the entry of judgment cancelling the lien or reducing the amount claimed thereunder,” and a directive that “the person shall be entitled to possession of the property” if the lien is canceled (id. § 182[9]). The statute also provides for a “[p]rivate right of action” “for recovery of damages and the return of [the] goods” for “[a]ny occupant damaged by an unlawful detention of his [or her] goods or any other violation of this section” (id. § 182[4][a]).

To the extent the plaintiff attempts to equate his allegation of a wrongful sale with an “unlawful detention,” for which the statute recognizes a “[p]rivate right of action” (id. § 182[4][a]), the plaintiff’s contention is without merit. An “unlawful detention of goods” is unambiguously defined under the statute as an owner’s “refus[al] to surrender goods stored by him [or her] for an occupant upon payment by the occupant of the occupancy fees permitted by this section” (id. § 182[3]). That definition does not mention or reference the sale of goods stored by an owner, and thus, the phrase “unlawful detention” cannot be read as encompassing the plaintiff’s allegation of a wrongful sale. Heins v Public Stor., 2025 NY Slip Op 06605, Second De[t 11-26-25

Practice Point: Lien Law 182 provides that a person with an interest in property to be sold at auction pursuant to the Lien Law may bring a special proceeding to dispute the validity of the lien or the amount claimed within ten days of service of notice of the auction (which was not done here). Lien Law 182 does not create a private right of action for “wrongful sale” of the property at the action. Therefore plaintiff’s “wrongful sale” cause of action was properly dismissed after trial pursuant to CPLR 4401.​

 

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GENERALLY THE DEATH OF A PARTY TO AN ACTION DIVESTS THE COURT OF JURISDICTION AND REQUIRES A STAY OF THE PROCEEDINGS; HERE IN THIS FORECLOSURE ACTION HUSBAND AND WIFE OWNED THE PROPERTY AS TENANTS BY THE ENTIRETY; THE PROPERTY THEREFORE REMAINED WHOLLY OWNED BY WIFE UPON HUSBAND’S DEATH; BECAUSE PLAINTIFF WAS NOT SEEKING A DEFICIENCY JUDGMENT AGAINST HUSBAND’S ESTATE, A STAY OF THE PROCEEDINGS WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of one of the parties in this foreclosure action did not require a stay of the proceedings. The defendant wife held the property with her husband as tenants by the entirety. When the husband died, the wife remained as the owner of the entire property. The plaintiff mortgage company, by moving to delete the husband’s name for the caption, elected not to seek a deficiency judgment against the decedent’s estate. Therefore the action should not have been stayed:

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'” … . However, “where a party’s demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … . “[A] mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises . . . is not a necessary party to foreclosure, unless a deficiency judgment is sought” … .

… [T]he plaintiff established that, upon the decedent’s death, Janice, “as a tenant by the entirety with her husband, remained seized of the entire ownership interest in the subject property” … . Moreover, by moving to amend the caption to delete the name of the decedent and, in effect, to discontinue the action insofar as asserted against him, the plaintiff, in effect, elected not to seek a deficiency judgment against the decedent’s estate … .

By virtue of the absolute conveyance of the property from the decedent to Janice, and the plaintiff’s waiver of its right to seek a deficiency judgment against the decedent or his estate, “strict adherence to the requirement that the proceedings be stayed pending substitution was not necessary” … . Citimortgage, Inc. v Fimbel, 2025 NY Slip Op 06600, Second Dept 11-26-25

Practice Point: Here in this foreclosure action against husband and wife as tenants by the entirety, the husband’s death did not require a stay of the proceedings because the wife continued to hold the entire ownership interest in the property and plaintiff was not seeking a deficiency judgment against the estate of the husband.

 

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PLAINTIFF WIRED $300,000 TO AN ACCOUNT IN DEFENDANT BANK WHICH HAD BEEN SET UP BY A FRAUDSTER TO DEFRAUD PLAINTIFF; PLAINTIFF FAILED TO PLEAD A SPECIAL RELATIONSHIP WITH DEFENDANT BANK WHICH IS REQUIRED BEFORE A DUTY (OWED TO PLAINTIFF) TO ENFORCE ITS ANTI-FRAUD PROCEDURES ARISES; THE COMPLAINT THEREFORE SHOULD HAVE BEEN DISMISSED (CT APP).

The Court of Appeals, in a one-sentence memorandum decision which adopted the reasoning of the Second Department dissent by Justice Higgitt, reversed the Second Department’s ruling that the complaint adequately pled a special relationship between the bank and plaintiff and held that the bank’s motion to dismiss the complaint should have been granted. There must have existed a special relationship between defendant JPMorgan Chase Bank and plaintiff before a duty (owed to plaintiff) to enforce the bank’s anti-fraud procedures arises. Defendant David Tate had opened an account at a New Jersey Chase bank in the name of his business, Alchemy. Tate did not provide any personal identification or any corporate documentation to the bank. Plaintiff, thinking she was investing in Alchemy, wired $300,000 to the Alchemy account which was appropriated by Tate. As Justice Higgitt wrote in his dissent:

On this appeal, which involves an individual who was swindled when she authorized a wire transfer to the account of a fraudster, we are asked to determine whether New Jersey law recognizes a common-law duty on the part of a bank to an existing customer to exercise reasonable care before permitting a potential customer to open an account. I find that a duty to exercise such care exists only when a bank has a “special relationship” with its existing customer from which that duty should be deemed to flow. The amended complaint, however, fails to allege facts suggesting that a special relationship existed between plaintiff and defendant Bank. Therefore, defendant Bank’s CPLR 3211 (a) (7) motion should have been granted. Ben-Dor v Alchemy Consultant LLC, 2024 NY Slip Op 03797, Second Dept 7-11-24; Ben-Dor v Alchemy Consultant LLC, 2025 NY Slip Op 06538 CtApp 11-25-25

Practice Point: In New Jersey, to sue a bank for the wrongful conduct of a third party, here the use of a bank account to defraud plaintiff, the bank must owe plaintiff a special duty. Reversing the Second Department and adopting the reasoning of the dissent, the Court of Appeals held the complaint should have been dismissed because it did not adequately allege the existence of a special relationship between the bank and the plaintiff.

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) WAS PROPERLY APPLIED RETROACTIVELY IN THIS CASE; RETROACTIVE APPLICATION DOES NOT VIOLATE THE DUE PROCESS OR CONTRACT CLAUSES OF THE UNITED STATES CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the Foreclosure Prevention Abuse Act applied retroactively to the case before it. Retroactive application does not violate the Due Process or Contract Clauses of the United States Constitution:

We therefore hold that the provisions apply retroactively. Accordingly, because “a final judgment of foreclosure and sale has not been enforced” in this action … , FAPA §§ 4, 7, and 8 govern here by their terms. * * *

To comport with substantive due process, a statute’s retroactive application must be supported by “a legitimate legislative purpose furthered by rational means” … . That is, “the retroactive application of the legislation” must “itself [be] justified by a rational legislative purpose” … .

… FAPA’s legislative history identifies certain “abus[ive]” litigation practices engaged in by mortgage lenders and noteholders as the animating force behind FAPA’s enactment: the sponsors’ memoranda state “legislat[ive] find[ings]” to this effect … . In light of the legislature’s determination that these “abuses” should be curtailed, it is rational for FAPA to apply retroactively to shield as many borrowers as possible from those practices. Moreover, insofar as FAPA’s relevant provisions clarify or change the manner in which the six-year statute of limitations applies, FAPA’s retroactive application also rationally advances “the strong public policy favoring finality, predictability, fairness and repose” in human affairs … . Van Dyke v U.S. Bank, Natl. Assn., 2025 NY Slip Op 06537, CtApp 11-25-25

 

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IN ANSWERING TWO CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT, THE COURT OF APPEALS HELD THAT THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIED RETROACTIVELY AND DID NOT VIOLATE SUBSTANTIVE OR PROCEDURAL DUE PROCESS UNDER THE NEW YORK CONSTITUTION (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Wilson, answering two certified questions from the Second Circuit, determined (1) the Foreclosure Abuse Prevention Act (FAPA) took effect immediately upon enactment and applied to all foreclosure actions in which a final judgment of foreclosure has not been enforced, and (2), retroactive application of the statute does not violate substantive or procedural due process rights under the New York Constitution:

… FAPA Section 7 applies to “foreclosure actions commenced before the statute’s enactment.” FAPA achieved its clear purpose with straightforward statutory text. The portion of Section 7 of FAPA at issue in this case is codified at CPLR 213 (4) (b):

“[A] defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.”

FAPA Section 10 then provides that “[t]his act shall take effect immediately and shall apply to all actions commenced on[, as relevant here, a residential mortgage loan agreement,] in which a final judgment of foreclosure and sale has not been enforced.” Article 13 LLC v Ponce De Leon Fed. Bank, 2025 NY Slip Op 06536, CtApp 11-25-25

 

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DEFENDANTS DID NOT PRODUCE A SURVEILLANCE VIDEO DEPICTING PLAINTIFF’S ACCIDENT UNTIL AFTER PLAINTIFF’S DEPOSITION; DEFENDANTS ARE PRECLUDED FROM INTRODUCING THE VIDEO IN EVIDENCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s should have been precluded from introducing in evidence a surveillance video depicting plaintiff’s accident. Although the video had been explicitly demanded by plaintiff, defendants did not produce it until after plaintiff’s deposition, six months after the entry of the compliance order:

Supreme Court improvidently exercised its discretion in denying plaintiff’s motion seeking discovery sanctions. Plaintiff demonstrated that defendants acted willfully and contumaciously when they failed to turn over video footage of plaintiff’s accident … . Defendants failed to produce the video in response to repeated explicit demands and repeatedly denied the existence of any video of plaintiff’s accident. It was not until after plaintiff’s deposition on May 20, 2024 and during the June 27, 2024 deposition of defendants’ building manager that defendants revealed the existence of the video. While only six months elapsed from entry of the compliance order to the belated production of the video, it cannot be said that plaintiff was not prejudiced by the late production. Defendants should be sanctioned for their dilatory behavior in producing the surveillance video after plaintiff’s deposition had already taken place … .

Given the totality of the circumstances, Supreme Court should have granted the lesser sanction of preclusion … . Larue v 1201-31 Lafayette Ground Gowner LLC, 2025 NY Slip Op 06546, First Dept 11-25-25

Practice Point: Here there was an explicit demand for any video of plaintiff’s accident but defendants did not produce to video until after plaintiff’s deposition. Introduction of the video in evidence was precluded.

 

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