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THE DEFENSE MOTION TO SET ASIDE THE JURY VERDICT AND REINSTATE COUNTERCLAIMS SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have reinstated defendants’ counterclaims which were rejected by the jury after a lengthy trial. The First Department explained the criteria for setting aside a jury verdict pursuant to CPLR 4404(a):

Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial. Pursuant to CPLR 4404(a), a court may set aside a jury verdict, or order a new trial, where “the verdict is contrary to the weight of the evidence,” or “in the interest of justice.” In making this determination, the court must proceed with caution, because “in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” … . Thus, a verdict should only be set aside if the evidence is so in favor of the moving party that the verdict “could not have been reached on any fair interpretation of the evidence” … , or in the interests of justice due to “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . Beach v Touradji Capital Mgt., LP, 2026 NY Slip Op 05231, First Dept 9-3-26

Practice Point: Consult this decision for insight into the criteria for setting aside a jury verdict. Here the jury’s rejection of defendants’ counterclaims should not have been disturbed.​

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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HERE IN THIS FORECLOSURE ACTION, PLAINTIFF FILED A REQUEST FOR JUDICIAL INTERVENTION SEEKING A SETTLEMENT CONFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THEREFORE PLAINTIFF NEED NOT PROVIDE A REASONABLE EXCUSE FOR THE DELAY OR DEMONSTRATE A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR ABANDONMENT PURSUANT TO CPLR 3215(C); ANY FURTHER DELAYS AFTER THE REQUEST FOR JUDICIAL INTERVENTION ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint in this foreclosure action, determined plaintiff did not abandon the action because it filed a request for judicial intervention seeking a settlement conference within one year of defendant’s default:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” “To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. Rather, as long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . The filing of a request for judicial intervention that seeks a residential mortgage foreclosure settlement conference as mandated by CPLR 3408 constitutes the taking of proceedings under CPLR 3215(c) … . * * *

Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after [the] default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action … . Furthermore, “once the plaintiff established that it had initiated proceedings for the entry of a judgment within one year after the defendants’ default, it was in compliance with CPLR 3215(c) and it was not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” … . Aurora Loan Servs., LLC v Miller, 2026 NY Slip Op 05153, Second Dept 9-2-26

Practice Point: If, in a foreclosure action, plaintiff files a request for judicial intervention and a settlement conference within one year of defendant’s default, plaintiff need not provide an excuse for the delay or demonstrate a meritorious cause of action to avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c). Once proceedings have been taken within one year of default, any further delays after the taking of proceedings are irrelevant to any claim of abandonment.

 

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DEFENDANTS DID NOT SUBMIT AN AFFIRMATION DEMONSTRATING A GOOD FAITH EFFORT TO RESOLVE THE DISCOVERY ISSUES; DEFENDANTS, IN THEIR MOTION TO PRECLUDE THE PLAINTIFF FROM PRESENTING EVIDENCE AS A DISCOVERY SANCTION, DID NOT DEMONSTRATE PLAINTIFF’S FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY WAS “WILLFUL AND CONTUMACIOUS;” DEFENDANTS’ MOTION TO PRECLUDE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion to preclude plaintiff from offering evidence or responding to a dispositive motion as a discovery sanction should not have been granted for two reasons: (1) the defendants did not submit an affirmation demonstrating a good faith effort to resolve the discovery issues (22 MYCRR 202.t(a)); and (2), the defendants failed to demonstrate plaintiff’s failure to comply with court-ordered discovery was willful and contumacious:

‘Pursuant to CPLR 3126, a court may impose discovery sanctions, including the . . . preclusion of evidence, where a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed”‘” … . “Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the defendants failed to make a clear showing of a willful and contumacious failure by the plaintiff to comply with discovery demands. The defendants’ motion papers failed to identify precisely what discovery was demanded and never provided. In addition, the August 2022 order only referred vaguely to, among other things, “authorizations,” and the March 2024 order directed the plaintiff to submit “complete responses” to the defendants’ combined discovery demands without any indication of the nature of the alleged outstanding discovery. Under the circumstances, the defendants failed to make the requisite showing justifying the Supreme Court’s imposition of the subject discovery sanctions … . Noh Soon Park v Food Bazaar Supermarket, 2026 NY Slip Op 05108, Second Dept 8-26-26

Practice Point: Consult this decision for insight into what a defendant must demonstrate to win a motion to preclude the plaintiff from presenting evidence as a sanction for failure to comply with court-ordered discovery.

 

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HERE SUPREME COURT PROPERLY FOUND THERE WAS “GOOD CAUSE SHOWN” FOR AN EXTENSION OF TIME FOR SERVICE OF THE SUMMONS AND COMPLAINT AND THE EXTENSION WAS PROPERLY GRANTED BEFORE THE TRAVERSE HEARING ON THE INITIAL ATTEMPT AT SERVICE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, determined the judge properly granted plaintiff an extension of time to serve the summons and complaint for “good cause shown. ” pursuant to CPLR 306-b. In addition, the judge properly granted the extension before holding the traverse hearing to determine the validity of the initial service of process:

… Supreme Court properly determined that the plaintiff established good cause. The plaintiff established reasonable diligence in ascertaining Brown’s [defendant’s] address. The plaintiff’s counsel reasonably relied upon the representation made by Brown in response to the information subpoena, and counsel confirmed those representations by conducting database inquiries. Moreover, the process server established that he acted with reasonable diligence in effecting service. In response, …

… Supreme Court providently exercised its discretion in granting relief pursuant to CPLR 306-b before holding the traverse hearing [re: the initial attempt at service].. CPLR 306-b does not contain any language stating that a court must decide whether an initial attempt at service of process was valid before granting an extension of time to re-attempt service … . A court may, in the interests of judicial economy, grant an extension before holding a traverse hearing … . M&T Bank v Global Sign Cleaning & Maintenance, Inc., 2026 NY Slip Op 05092, Second Dept 8-25-26

Practice Point: This opinion fleshes out the criteria for an extension of time to serve the summons and complaint “for good cause shown” pursuant to CPLR 306-b.

 

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IN A MODIFICATION-OF-CHILD-SUPPORT PROCEEDING, EVEN WHERE THE MOVING PARTY MAKES OUT A PRIMA FACIE CASE SUPPORTING A REDUCTION, IF THE SUBMISSIONS RAISE QUESTIONS OF FACT A HEARING MUST BE HELD BEFORE A RULING IS MADE (SECOND DEPT).

The Second Department, reversing Family Court, determined that, even though defendant presented evidence supporting a downward modification of child support, the submissions by the parties raised questions of fact. Therefore the judge should not have ruled without holding a hearing. A recurring reason for Family Court reversals is the failure to hold a hearing:

The court may modify an order of child support where “there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236[B][9][b][2][ii][B] …). “However, such reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience” … . “‘On an application for modification of child support, a hearing is necessary where the parties’ evidentiary submissions disclose the existence of genuine issues of fact'” … .

Here, although the defendant demonstrated, prima facie, that his income had decreased by more than 15%, the reduction of income occurred through no fault of his own, and he made diligent efforts to secure comparable employment, a hearing is necessary because the parties’ evidentiary submissions disclosed the existence of genuine issues of fact … . Feldsherova v Lee, 2026 NY Slip Op 05080, Second Dept 8-26-26

Practice Point: Family Court reversals are often the result of the failure to hold a hearing.

 

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A JUDGE DOES NOT HAVE THE AUTHORITY TO DISMISS AN ACTION FOR “NEGLECT TO PROSECUTE” UNLESS THE STATUTORY PREREQUISITES FOR DISMISSAL SPELLED OUT IN CPLR 3216 ARE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the action for “neglect to prosecute.” CPLR 3216 spells out the conditions which must be met before dismissal of an action is appropriate:

The October 2024 order directed the plaintiff to file a note of issue 10 days prior to the inquest and noted that “[t]he failure to file a Note of Issue as directed or appear as directed may be deemed an abandonment of the claims giving rise to the Inquest.”

The plaintiff did not file the note of issue by the date of the inquest. In an order entered February 4, 2025, the Supreme Court, pursuant to the October 2024 order, sua sponte, directed dismissal of the action with prejudice. The plaintiff appeals.

“A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Pursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . The statute also requires “where, as here, a written demand to resume prosecution of the action is made by the court, ‘the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation'” … .

Here, the Supreme Court was without power to, sua sponte, direct dismissal of the action pursuant to CPLR 3216, as the statutory prerequisites for dismissal under that statute were not met … . Avanza Group, LLC v Bugz Innovations, LLC, 2026 NY Slip Op 05068, SEcond Dept 8-26-26

Practice Point: Absent fulfilling the prerequisites for dismissal of an action for “neglect to prosecute” spelled out in CPLR 3216 a judge does not have the authority to dismiss on that ground.

 

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THE JUDGE DISMISSED FATHER’S NEW YORK CUSTODY PETITION BECAUSE MOTHER HAD PREVIOUSLY COMMENCED A CUSTODY PROCEEDING IN FLORIDA; BECAUSE THE JUDGE DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT, THE MATTER WAS REMITTED (SECOND DEPT).

The Second Department, reversed Family Court and remitted the matter. The Family Court judge dismissed the father’s New York custody petition on the ground mother had previously commenced a custody proceeding in Florida where she and the child resided. The judge, however, did not follow the procedures mandated by the Uniform Child Custody Jurisdiction and Enforcement Act which must precede a ruling that one of the two courts is the most appropriate forum:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law article 5-A), a New York court “may not exercise its jurisdiction” in a child custody proceeding “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [Domestic Relations Law article 5-A], unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1] …). “If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2] …).

A court, acting pursuant to these provisions, must make a record of its communications with a court of another state on substantive matters, must promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75-i[4] …). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2] …). Matter of Adames v Digangi, 2026 NY Slip Op 05022, Second Dept 8-19-26

Practice Point: Consult this decision for an explanation of the statutory procedure mandated when a judge must decide which of two forums is appropriate for a custody proceeding. Here mother commenced a custody proceeding in Florida and father subsequently commenced a custody proceeding in New York.

 

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APPARENTLY THE MORTGAGOR WAS DECEASED AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED RENDERING THE FORECLOSURE ACTION A NULLITY; SUPREME COURT DID NOT HAVE JURISDICTION, SO AMENDING THE CAPTION TO ADD THE EXECUTOR DID NOT EFFECTUATE JURISDICTION OVER THE ESTATE; ECHO BAY PURCHASED THE PROPERTY FROM THE MORTGAGOR’S SUCCESSORS FOUR YEARS LATER; ECHO BAY HAD THE RIGHT TO INTERVENE, MOVE TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, AND MOVE TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, granting the motion to intervene and dismissing the foreclosure complaint, apparently determined the mortgagor was deceased at the time the foreclosure action was brought rendering the action a nullity. Therefore Supreme Court did not have jurisdiction to amend the caption to add the mortgagor’s executor. For years later, Echo Bay purchased the property from the mortgagor’s successors and properly moved to intervene, to vacate the judgment of foreclosure and sale and to dismiss the complaint:

“‘A party may not commence a legal action or proceeding against a dead person'” … , and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . * * *

… [T]he fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention … , and that branch of the plaintiff’s prior motion which was for leave to amend the caption to substitute the executor of [mortgagor’s] estate as a defendant in this action did not effectuate jurisdiction over her estate … . * * *

… Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against [the mortgagor], the sole borrower and property owner as alleged in the complaint … . The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1] …). “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” … . Federal Natl. Mtge. Assn. v Jackson, 2026 NY Slip Op 04927, Second Dept 8-12-26

Practice Point: If the mortgagor is deceased when the foreclosure action is commenced, the action is a nullity and the judgment of foreclosure and sale is void. A subsequent purchaser of the property can successfully move to intervene, vacate the judgment and dismiss the foreclosure complaint.

 

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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.

 

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