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SERVICE OF A VALID RPAPL 1304 NOTICE IS A CONDITION PRECEDENT TO A FORECLOSURE ACTION; HERE THE AMOUNT OWED INDICATED IN THE RPAPL 1304 NOTICES DIFFERED FROM THE AMOUNT OWED INDICATED IN THE COMPLAINT, RAISING A QUESTION OF FACT WHETHER THE RPAPL 1304 NOTICE WAS INCORRECT AND THEREFORE INVALID (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined there were questions of fact about whether the RPAPL 1304 notices were defective on their faces. The amount owed indicated in the RPAPL 1304 notices differed from the amount owed described in the complaint. Service of a valid RPAPL 1304 notice is a condition precedent to a foreclosure action. There must be strict compliance with the RPAPL 1304 content requirements:

… [P]laintiff failed to tender sufficient evidence demonstrating the absence of triable issues of fact as to its strict compliance with the content requirements of RPAPL 1304. RPAPL 1304(1) requires that the 90-day notice state: “As of ___, your home loan is ___ days and ___ dollars in default.” The instant RPAPL 1304 notices stated: “As of 07/05/2023, your home loan is 4954 days and $735,151.56 dollars in default.” In contrast, the complaint stated that “there is now due and owing to the Plaintiff under said Note and Mortgage the principal sum of $440,882.36, with interest thereon from September 1, 2009.” Although the complaint noted that the plaintiff “only seeks to collect those installments which are within 6 years past due as of the date of commencement,” the complaint clarified in a footnote that the amount of $440,882.36 “reflects the unpaid principal balance as of the default date and interest paid through date.” At least one of these documents, then, contained an error concerning the amount due on the note—information that was required under RPAPL 1304. Residential Mtge. Loan Trust 2013-TT2 v Elshiekh. 2026 NY Slip Op 05124, Second Dept 8-26-26

Practice Point: If the amount owed indicated in the RPAPL 1304 notice is incorrect, the notice is invalid and this condition precedent for a foreclosure action has not been fulfilled.

 

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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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THE PRELIMINARY INJUNCTION SHOULD NOT HAVE BEEN GRANTED; THE “LIKELIHOOD OF SUCCESS” ELEMENT WAS NOT ADEQUATELY DEMONSTRATED BY ALLEGATIONS MADE BASED ON “INFORMATION AND BELIEF;” AND THE “IRREPARABLE HARM” ELEMENT WAS NOT DEMONSTRATED BECAUSE PLAINTIFF DID NOT EXPLAIN WHY THE INJURY COULD NOT BE ADEQUATELY ADDRESSED BY MONEY DAMAGES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the criteria for a preliminary injunction were not met. The “likelihood of success” element was not demonstrated by allegations based upon “information and belief.” In addition plaintiff did not demonstrate the “irreparable harm” element because plaintiff failed to explain why money damages would not adequately compensate for the injury:

In an affidavit in support of the motion for a preliminary injunction, the plaintiff’s statements … were made only upon “information and belief,” and the plaintiff submitted no evidence … .

The plaintiff also failed to establish irreparable harm. To establish irreparable harm, the plaintiff must demonstrate an injury for which money damages are insufficient … . Here, the plaintiff attested in his affidavit that, if the defendant were permitted to enforce the agreement, the defendant would be entitled to 100% of the plaintiff’s business’s revenue and the business would inevitably cease operation. The plaintiff … failed to demonstrate that this injury could not be adequately compensated by money damages. Culp v Silverline Servs., Inc., 2026 NY Slip Op 05077, Second Dept 8-26-26

 

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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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PROPERTY OWNED BY A LIMITED LIABILITY COMPANY AND A TRUST IS NOT ENTITLED TO THE PROTECTIONS OF THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (RPAPL 993); THOSE ENTITIES ARE NOT “INDIVIDUALS” WITHIN THE MEANING OF THE ACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this partition action, in a full-fledged opinion by Justice Golla, determined a limited liability company and a trust are not “individuals” within the meaning of Real Property Actions and Proceedings Law (RPAPL) section 993:

In a case of first impression before this Court, we are asked to determine whether property owned wholly by a trust and a limited liability company may constitute “heirs property” pursuant to the Uniform Partition of Heirs Property Act (RPAPL 993). That question requires a determination as to whether a trust and a limited liability company are “individual[s]” within the meaning of RPAPL 993. … [W]e find that trusts and limited liability companies are not “individual[s]” under RPAPL 993. Property wholly owned by such entities, and not owned by individuals who acquired title from a relative, cannot be “heirs property” within the meaning of the statute. * * *

Here, the brothers, after owning the subject property themselves for more than half a century, put their interests in the subject property into these sophisticated legal entities. The owners’ status as sophisticated legal entities provides its own protections from predatory parties. In any event, here, there is no outside third party who is seeking to invade a family’s right to possess real property, further demonstrating that the owners are not entitled to the protections of RPAPL 993. Flouret v Sagland, LLC, 2026 NY Slip Op 05009, Second Dept 8-19-26

 

PLAINTIFF WAS INJURED WHEN A BEAM WHICH WAS BEING HOISTED STARTED SWINGING WHEN PLAINTIFF WAS HOLDING ON TO IT; THE BEAM STRUCK A PILE OF BEAMS ON THE GROUND AND PLAINTIFF WAS “JERKED … FORWARD;” BECAUSE THE BEAM SHOULD HAVE BEEN SECURED AND THE INJURY WAS RELATED TO THE FORCE OF GRAVITY PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when a beam was being hoisted started swinging with plaintiff’s arm around it, and struck a pile beams, causing plaintiff to be “jerked … forward.”

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . “Liability is contingent upon ‘the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'” … . In cases involving falling objects, the applicability of the statute does not “depend upon whether the object has hit the worker” but rather “whether the harm flows directly from the application of the force of gravity to the object” … . “In falling object cases, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … .

Here, the plaintiff established, prima facie, [defendants’] liability under Labor Law § 240(1) by submitting, among other things, transcripts of the plaintiff’s deposition testimony and the crane operator’s deposition testimony, which established that the beam being hoisted at the time of the incident was an object that required securing for purposes of the undertaking, and the harm flowed “directly from the application of the force of gravity to the” beam … . Sougstad v OLP Hauppauge, LLC, 2026 NY Slip Op 05050, Second Dept 8-19-26

Practice Point: Here a beam which started swinging when it was hoisted was deemed a “falling object.” Although the “falling object” did not strike plaintiff, his injury was the result of the force of gravity upon the beam which should have been secured. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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DEFENDANT WAS DRIVING AT MORE THAN TWICE THE POSTED SPEED LIMIT IN A RESIDENTIAL NEIGHBORHOOD WHEN HE COLLIDED WITH ANOTHER CAR, KILLING THE DRIVER; USUALLY EXCESSIVE SPEED ALONE WILL NOT SUPPORT A CRIMINALLY NEGLIGENT HOMICIDE CHARGE; HERE, HOWEVER, THE EXCESSIVE SPEED IN COMBINATION WITH OTHER FACTORS, INCLUDING THE CHARACTER OF THE NEIGHBORHOOD, WAS SUFFICIENT TO SUPPORT THE CHARGE (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the indictment, over a dissent, determined the evidence presented to the grand jury was legally sufficient for criminally negligent homicide. The defendant was driving at twice the speed limit in a residential neighborhood when he collided with another vehicle at an intersection, killing the driver. Generally driving in excess of the speed limit, alone, will not support a criminally negligent homicide charge. However, here, the excessive speed, in combination with other factors, was deemed sufficient:

[T]he culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires ‘some additional affirmative act’ aside from ‘driving faster than the posted speed limit'” … , which transforms speeding into dangerous speeding, by engaging in some other “risk-creating” behavior such as disregarding traffic signals … . However, there is no per se rule that speeding alone is insufficient … . There are circumstances where excessive speed “absent proof of any other contributing factors” is sufficient … . The extent of the violation of the posted speed limit and the surrounding circumstances must be considered … .

“[I]n order to sustain a conviction for criminally negligent homicide in a case in which the principal item of evidence consists of proof of the defendant’s use of excessive speed, [the law does not require that] the prosecution must always prove some other traffic law violation unrelated to the defendant’s rate of speed. While it may be accurate to say that an infraction of the posted speed limit does not ipso facto establish criminal negligence, it would not be accurate to say that a trier of fact may never conclude that in light of the time, the place, the weather conditions, and in light of any number of other factors which might be established at the trial, the defendant’s use of excessive speed was criminally negligent” … .

Here, … [t]he evidence, if accepted as true, demonstrated that the defendant disregarded road conditions, i.e., the fact that he was traveling in a residential neighborhood with a playground on the corner of the intersection, when he decided to drive his vehicle through the intersection at well above twice the posted speed limit … . The evidence further indicated that he was showing off to his friend how the vehicle “drives,” which, considering the fact that he accelerated the vehicle’s speed while allegedly doing so, indicated that he was showing off how the vehicle operated at a high speed. The evidence further indicated that he ignored a traffic control sign directing motorists to exercise additional caution … . People v Lee, 2026 NY Slip Op 05038, Second Dept 8-19-26

Practice Point: Here in the fatal-vehicle-accident case, defendant’s excessive speed, in combination with the nature of the neighborhood and other factors, supported the criminally negligent homicide charge.

 

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