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THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216 PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to comply with the requirements of CPLR 3216 precluded the dismissal of the complaint:

… [A]bsent strict compliance with the conditions precedent to dismissal set forth in CPLR 3216 (b) (3), “[n]o dismissal shall be directed” … . Indeed, “[t]he conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly” … .

Among those conditions precedent are the service of a ninety-day demand to resume prosecution, by registered or certified mail, which specifically states that the failure to file the note of issue within ninety days will serve as a basis for a motion to dismiss for want of prosecution … . Where the ninety-day demand is served by the court, the demand shall also “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, the court did not serve a ninety-day demand upon plaintiff, and for that reason alone, the court erred in directing dismissal pursuant to CPLR 3216. Even assuming, arguendo, that the court’s second supplemental scheduling order could serve as the substitute for a ninety-day demand, that scheduling order did not indicate that dismissal would result if plaintiff failed to file the note of issue, nor did it set forth the specific conduct constituting plaintiff’s neglect … . “While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply, i.e., dismissal of the complaint” … , and here, the order wholly failed to do so. Woloszuk v Logan-Young, 2025 NY Slip Op 02444, Fourth Dept 4-25-25

Practice Point: The conditions precedent for dismissal of a complaint in CPRL 3216 must be strictly complied with by the judge or reversal is mandatory.

 

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ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).

The First Department, reversing Supreme Court in this breach of contract action, determined that, although the defendant’s attorney-affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because plaintiff never objected to the admissibility of the documents and relied on those documents in opposing defendant’s motion:

Supreme Court improvidently concluded that defendant’s documentary evidence was not admissible for purposes of its motion. An attorney’s affirmation “‘may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence,’ so long as the [affirmation] ‘constitute[s] a proper foundation for the admission of the records'” … . The court was correct that defendant’s attorney, in her affirmation, did not lay a foundation for the admission of the records, such as her personal knowledge or her certification of the documents as true and complete copies of the originals. However, plaintiff never objected to the admissibility of any of the documents annexed to the attorney’s affirmation … and relied on the same documents in opposition to defendant’s motion … . AWL Indus., Inc. v New York City Hous. Auth., 2025 NY Slip Op 02402, First Dept 4-24-25

Practice Point: An attorney affidavit can be used as a vehicle for the admission of documentary evidence if the affidavit lays a proper foundation.

Practice Point: Here, although the defendant’s attorney affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because the plaintiff did not object to them and relied on them in opposition to the defendant’s motion.

 

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THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict should not have been granted. The motion was based upon affidavits from two jurors which were drafted after the jury was discharged. There was no support in the record for the claims made in the affidavits:

“It has long been the law that, with narrow exceptions, jury verdicts may not be impeached by probes into the jury’s deliberative process” …. Further, “jurors may not impeach their own verdict unless they have been subjected to outside influence” … . This principle, however, is subject to two exceptions. First, “where an error is made in reporting the verdict, the trial judge may, upon the unanimous affidavits or statements of the jurors, correct the judgment to conform to the actual verdict” … . Second, “where the record demonstrates substantial confusion among the jurors in reaching a verdict, the court must direct a new trial to prevent a miscarriage of justice to the litigants” … . However, “[t]he use of post-discharge juror affidavits to attack the verdict is ‘patently improper’ where the record is devoid of any evidence of external influence, juror confusion, or ministerial error in reporting the verdict” … .

… [Defendant] sought to set aside the jury verdict on the issue of apportionment of liability based upon post-discharge affidavits from two jurors indicating that the jury was confused regarding the apportionment of liability. However, the trial record is devoid of any evidence of juror confusion regarding the issue of apportionment of liability, and thus, the use of post-discharge affidavits from jurors to attack the verdict is patently improper … . Gleneida Med. Care, P.C. v DBG Mgt. Corp., 2025 NY Slip Op 02323, Second Dept 4-23-25

Practice Point: Consult this decision for an explanation of when a jury verdict may be impeached by probing into the jury’s deliberative process.

 

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PLAINTIFF SHOULD NOT HAVE BEEN GRANTED MORE TIME TO SERVE DEFENDANT UNDER EITHER THE “GOOD CAUSE” OR “INTEREST OF JUSTICE” CRITERIA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should not have been granted more time to serve the summons and complaint under either the “good cause” or “interest of justice” criteria:

Pursuant to CPLR 306-b, a plaintiff is required to serve the summons and complaint within 120 days after commencement of the action. If service of the summons and complaint is not made upon the defendant within that time, “the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” … . “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” … . Such a showing is not required to obtain an extension of time under the interest of justice standard, which is a broader standard intended to “‘accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'” … . “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . In reaching its determination, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … .

Here, the plaintiff failed to establish good cause to extend the time to serve [defendant], as no evidence was offered that she attempted to serve him with reasonable diligence. Further, … the plaintiff failed to establish that an extension of time to serve … was warranted in the interest of justice. The plaintiff failed to offer any explanation for the eight-month delay in filing the affidavit of service, the delay in moving, among other things, for leave to enter a default judgment … , and the four-month delay in moving to extend the time to serve … after the defendants had cross-moved … to dismiss the complaint … for lack of personal jurisdiction. There is no evidence in the record that [defendant] had notice of the action during the 120-day period after the commencement of the action … . Druss v Scher, 2025 NY Slip Op 02318, Second Dept 4-23-25

Practice Point: Even though the statute of limitations had passed. plaintiff’s failure to exercise reasonable diligence precluded an extension of time to serve the defendant, under either the “good cause” or “interest of justice” criteria.

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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A JUDGE SHOULD NOT, SUA SPONTE, ORDER THE DISMISSAL OF A COMPLAINT ABSENT “EXTRAORDINARY CIRCUMSTANCES,” NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances to justify the judge’s “sua sponte” dismissal of the complaint:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, no extraordinary circumstances existed warranting dismissal of the complaint … . Accordingly, the Supreme Court should not have, sua sponte, directed dismissal of the complaint. Project Guardianship v Chai 91 St. Marks PLC, LLC, 2025 NY Slip Op 02360, Second Dept 4-23-25

Practice Point: There have been many reversals of “sua sponte” dismissals of complaints.

 

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ONLY THE COURT CHARGED WITH EMPANELING THE GRAND JURY CAN ORDER THE RELEASE OF THE GRAND JURY MINUTES; IN ORANGE COUNTY THE COURT CHARGED WITH EMPANELING GRAND JURIES IS COUNTY COURT; THEREFORE THE PETITON FOR A WRIT OF PROHIBITION PROHIBITING A SUPREME COURT JUSTICE FROM ORDERING THE RELEASE OF THE GRAND JURY MINUTES WAS GRANTED (SECOND DEPT).

The Second Department granted a petition for a writ of prohibition to prohibit a Supreme Court justice from ordering the release of grand jury minutes to the plaintiff in a civil action. Only the court charged with empaneling the grand jury, in this case County Court, can order release of the minutes:

The orders … directing the release of certain grand jury minutes in the subject criminal action and directing the clerk of the court to provide those minutes to the plaintiff’s counsel in the underlying civil action, are subject to prohibition for exceeding the Supreme Court’s authorized powers, as “only the court in charge of a Grand Jury may release testimony from the secrecy requirements of CPL 190.25(4)” … . In Orange County, only terms of the County Court have been charged with the empaneling of grand juries at the times relevant to this proceeding … , and as such, that was the court in charge of the grand jury in the subject criminal action, and the only court authorized to release those grand jury minutes … . Matter of Hoovler v Vazquez-Doles, 2025 NY Slip Op 02204, Secpmd Dept 5-16-25

Practice Point: If a Supreme Court justice issues an order which exceeds that court’s authorized powers, here an an order to release grand jury minutes to a plaintiff in a civil action, a petition for a writ of prohibition will be granted.

 

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THE DEFENDANTS DID NOT RAISE A DEFECT IN SERVICE AS AN AFFIRMATIVE DEFENSE; THE JUDGE SHOULD NOT HAVE RAISED THE ISSUE SUA SPONTE AND DISMISSED THE PROCEEDING ON THAT GROUND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the propriety of service issue and dismissed the proceeding on that ground:

The Supreme Court should not have, sua sponte, dismissed the proceeding/action on the ground of a defect in service. Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, “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” … . “When a defendant participates in a lawsuit on the merits, he or she 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” … .

Since the respondents did not object to the Supreme Court’s jurisdiction over them in an answer or in their cross-motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the petition/complaint, the court should not have, sua sponte, raised the issue of the propriety of service … . Further, the respondents waived any objection to the propriety of service by appearing in the proceeding/action and cross-moving to dismiss the petition/complaint without raising the defense of lack of personal jurisdiction … . Matter of Weiss v County of Suffolk, 2025 NY Slip Op 02210, Second Dept 4-16-25

Practice Point: Defective service is an affirmative defense which, if not raised by a party, is waived. A judge cannot raise and decide the issue sua sponte.

 

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HOME DEPOT RENTED A TRUCK TO A MAN WHO DROVE THE TRUCK INTO A CROWD OF PEDESTRIANS AND BICYCLISTS; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR NEGLIGENT ENTRUSTMENT; THE MOTION COURT IMPROPERLY TREATED THE MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT; ALTHOUGH THE ALLEGATIONS IN THE COMPLAINT ARE DEEMED TRUE FOR A MOTION TO DISMISS, HERE THOSE ALLEGATIONS WERE PROPERLY REFUTED BY AFFIDAVITS AND DEPOSITIONS SUBMITTED BY HOME DEPOT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs did not state a cause of action for negligent entrustment against defendant Home Depot, which rented a truck to Saipov, referred to in the decision as a “terrorist,”  who drove the truck into a crowd of pedestrians and bicyclists. The First Department noted that the motion court improperly treated the motion to dismiss as a motion for summary judgment. The First Department further noted that, although allegations in the complaint are deemed to be true for analysis of a motion to dismiss, affidavits and other documents submitted by a defendant can properly refute the allegations made in the complaint, and did so here:

… “[F]actual allegations presumed to be true on a motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evidence” … .

Plaintiffs’ complaints allege that Home Depot negligently entrusted the vehicle to Saipov when it knew or should have known that his use of the pickup truck could be potentially dangerous to others, and that it should have refused to rent it to him. These allegations, even when viewed in the light most favorable to plaintiffs, do not state a cause of action for negligent entrustment. Moreover, documentary evidence as well as deposition testimony submitted by Home Depot conclusively refute these allegations.

… Home Depot established that it did not have “some special knowledge concerning a characteristic or condition peculiar” to Saipov which would render his use of the truck “unreasonably dangerous” … . Grandelli v City of New York, 2025 NY Slip Op 02154, First Dept 4-15-25

Practice Point: On a motion to dismiss, the allegations in the complaint are deemed to be true. However, those allegation can be negated by affidavits, depositions and other documents submitted by a defendant. The submission of such documents does not convert a motion to dismiss to a motion for summary judgment.

 

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THE JUDGE PRONOUNCED A FELONY SENTENCE WITHOUT AN UPDATED AND COMPLETE PRESENTENCE REPORT; SENTENCE VACATED (FIRST DEPT).

The First Department, vacating defendant’s sentence after his period of incarceration was served but before his postrelease supervision was complete, determined the absence of a complete and updated presentence report invalidated the sentence:

Where a person is convicted of a felony, the court must order a presentence investigation of the defendant and it may not pronounce sentence until it has received a written report of that investigation (CPL 390.20[1] …). The presentence report must be current and contain updated information pertinent to the imposition of a proper sentence … . We hold that the presentence report in this case was inadequate, as it omitted crucial information regarding defendant’s history of trauma, mental health and substance abuse issues and failed to include a victim impact statement, among other things (CPL 390.30). We particularly note that defendant had not been interviewed prior to the report’s issuance and that Probation requested an adjournment of sentencing so that the newly assigned case officer could conduct the investigation.

Defendant, who was not represented by his assigned counsel at sentencing, did not waive his entitlement to a current, updated report by failing to affirmatively object to the presentence report’s sufficiency … . People v Camacho, 2025 NY Slip Op 02136, First Dept 4-10-25

Practice Point: A judge cannot pronounce sentence for a felony before receiving an updated and complete presentence report.

 

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