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UNDER THE 2022 FORECLOSURE ABUSE PREVENTION ACT BANKS CAN NO LONGER STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY VOLUNTARILY DISCONTINUING A FORECLOSURE ACTION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred noting that the 2022 Foreclosure Abuse Prevention Act prohibited banks from stopping the running of the statute of limitations by voluntarily discontinuing the action:

… [T]he voluntary discontinuance of the 2010 foreclosure action did not serve to reset the statute of limitations. Under the Foreclosure Abuse Prevention Act (L 2022, ch 821, § 8 [eff Dec. 30, 2022]), the voluntary discontinuance of the 2010 foreclosure action did not “in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” (CPLR 3217[e] …).  ARCPE 1, LLC v DeBrosse, 2023 NY Slip Op 03498, Second Dept 6-28-23

Practice Point: Under the 2022 Foreclosure Abuse Prevention Act banks can no longer stop the running of the statute of limitations by voluntarily discontinuing the foreclosure action.

 

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THE BANK DID NOT DEMONSTRATE IT HAD STANDING TO FORECLOSE; THERE WAS INSUFFICIENT PROOF THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AS REQUIRED BY UCC 3-202 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not prove it had standing to bring the action:

A plaintiff has standing to commence a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action … . However, where an endorsement is on an allonge to the note, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” pursuant to UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Here, the plaintiff’s submissions failed to eliminate triable issues of fact as to whether the allonges were so firmly affixed to the note as to become a part thereof … . [The bank vice president’s] affidavit did not clarify whether the allonges were firmly affixed to the note … . U.S. Bank N.A. v Duvivier, 2023 NY Slip Op 03496, Second Dept 6-28-23

Practice Point: If the endorsement is on an allonge to the note, the allonge must be firmly affixed to the note (UCC 3-202). If the bank does not prove the endorsed allonge is firmly affixed to the note, it has not proved standing to foreclose.

 

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PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE OF CLAIM ALLEGED THE LACK OF LIGHTING CONSTITUTED NEGLIGENT SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined certain allegations of negligence in the bill of particulars should have been struck because the notice of claim did not provide notice of them. The appellate division interpreted the notice of claim to allege that the lack of security at defendant’s apartment complex stemmed from inadequate lighting. Plaintiff’s decedent was shot and killed in an area which, allegedly, was completely dark. The additional claims of negligence in the bill of particulars were struck:

… [T]he crux of the notice of claim is that [defendant] NYCHA was negligent in failing to provide adequate security by failing to provide adequate lighting at the location where the decedent was shot and killed … .

… [T]he notice of claim did not directly or indirectly reference those allegations raised in … the bill of particulars that concern NYCHA’s failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises. These allegations go beyond mere amplification of the inadequate lighting allegation and are instead new, distinct, and independent theories of liability that cannot be corrected pursuant to General Municipal Law § 50-e(6) … .Mosley v City of New York, 2023 NY Slip Op 03345, Second Dept 6-21-23

Practice Point: The General Municipal Law section 50-e(6) allows mistakes or omissions from a notice of claim to be overlooked where the defendant is not prejudiced. Here the appellate division interpreted the notice of claim to allege the defendant housing authority’s only negligence was the failure to provide adequate lighting in the area where plaintiff’s decedent was shot. Therefore the additional allegations of negligent security in the bill of particulars (“failure to protect tenants from criminal activities and criminal intrusions, NYCHA’s failure to remove alleged known criminals from its premises in violation of its Permanent Exclusion Policy and Real Property Law § 231(2), NYCHA’s failure to install CCTV cameras, and the alleged sale of drugs on NYCHA premises“) should have been struck.

 

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THE APPLICABLE STATUTES OF LIMITATIONS FOR DECLARATORY-JUDGMENT CAUSES OF ACTION DEPEND ON THE NATURE OF THE UNDERLYING ALLEGATIONS; HERE THE ALLEGATIONS SOUNDED IN FRAUD, UNJUST ENRICHMENT AND VIOLATIONS OF THE REAL PROPERTY LAW; ALL WERE TIME-BARRED (SECOND DEPT).

​The Second Department, revering Supreme Court, determined the declaratory judgment causes of action were time-barred according to the statutes of limitations applicable to the underlying allegations, i.e., fraud, unjust enrichment, Real Property Law (RPL) and Real Property Actions and Proceedings Law (RPAPL) causes of action:

“Actions for declaratory judgments are not ascribed a certain limitations period. The nature of the relief sought in a declaratory judgment action dictates the applicable limitations period. Thus, if the action for a declaratory judgment could have been brought in a different form asserting a particular cause of action, the limitations period applicable to the particular cause of action will apply” … . Here, the cause of action for declaratory relief could have been, and previously was, brought in the form of causes of action to recover damages for fraud and intentional misrepresentation. Since the instant action was commenced more than six years after the plaintiff allegedly was fraudulently induced to convey title to the property and more than two years from the discovery of the alleged fraud, the cause of action for declaratory relief was time-barred … .

… [T]he second cause of action … seeks to void the defendant’s title to the property by virtue of the plaintiff’s claim that the plaintiff was fraudulently induced into conveying title to the defendant. Accordingly, this cause of action is governed by the six-year statute of limitations governing actions based upon fraud and, therefore, was untimely.

… [T]he cause of action to recover damages for unjust enrichment accrued … when the deed conveying title to the defendant was executed, and, therefore, this cause of action was also time-barred.

… [T]he cause of action alleging a violation of Real Property Law § 265-a was time-barred since it was commenced more than two years after recordation of the subject deed and more than six years after the alleged fraudulently induced conveyance. Mahabir v Snyder Realty Group, Inc., 2023 NY Slip Op 03342, Second Dept 6-21-23

Practice Point: The applicable statutes of limitations for declaratory-judgment causes of action depend on the nature of the underlying allegations. Here the underlying allegations sounded in fraud, unjust enrichment and Real Property Law causes of action. All were time-barred.

 

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APPELLANT PHYSICIAN’S ASSISTANT HAD LEFT DEFENDANT-PRACTICE AT THE TIME THE MEDICAL MALPRACTICE ACTION WAS BROUGHT AGAINST THE PRACTICE; THE PLAINTIFFS DID NOT DEMONSTRATE APPELLANT HAD TIMELY NOTICE OF THE SUIT; THEREFORE THE RELATION-BACK DOCTRINE DID NOT SUPPORT THE MOTION TO ADD THE APPELLANT AS A DEFENDANT AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to add appellant, a physician’s assistant, to this medical malpractice action should not have been granted. The statute of limitations has run and the relation-back theory was not supported by evidence appellant had timely notice of the suit. Appellant had stopped working for defendant practice at the time the suit was commenced:

“In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiffs must establish that (1) both claims arose out of [the] same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he [or she] will not be prejudiced in maintaining his [or her] defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiffs as to the identity of the proper parties, the action would have been brought against him [or her] as well” … . “The linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

Here, the plaintiffs failed to meet their burden as to the third prong of the relation-back doctrine. The record establishes that the appellant was no longer working for the practice at the time of the commencement of the action, and there is no evidence that she had actual or constructive knowledge within the limitations period of the commencement of the action … . Dixon v Jones, 2023 NY Slip Op 03336, Second Dept 6-21-23

Practice Point: To add a defendant to a complaint after the statute of limitations has run under the relation-back doctrine, plaintiff must demonstrate the party to be added had timely notice of the suit, not the case here.

 

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THE BANK’S SECOND MOTION IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR A MOTION TO RENEW AND VIOLATED THE “SUCCESSIVE SUMMARY JUDGMENT MOTION” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the second motion for summary judgment made by the bank in this foreclosure action was not a valid motion to renew and violated the “successive summary judgment rule:”

“While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance. When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” … . … [P]laintiff failed to provide any justification for its failure to present the new evidence supporting the second motion as part of its prior motion.

“Even considered as a successive motion for summary judgment, such a motion ‘should not be entertained in the absence of good cause, such as a showing of newly discovered evidence'” … . Here, the plaintiff failed to present good cause.

The second motion also did not fit within the “narrow exception” to the successive summary judgment rule … . This narrow exception permits entertainment of a successive motion when it is “substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts” … . Here, entertaining a second summary judgment motion involved review of multiple disputed issues, including whether the plaintiff established the defendants’ default, the plaintiff’s compliance with the contractual condition precedent, and the plaintiff’s compliance with RPAPL 1304. Thus, rather than eliminating a burden on the Supreme Court, the court’s consideration of the second motion actually imposed an additional burden on the court. “‘Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance'” … . Wells Fargo Bank, N.A. v Gittens, 2023 NY Slip Op 03373, Second Dept 6-21-23

Practice Point: The failure to explain why available evidence was not submitted in the first summary judgment motion will result in denial of a motion to renew.

Practice Point: The second motion here violated the “successive summary judgment motion” rule. The criteria are explained.

 

TRIPPING OVER A GAP BETWEEN THE TOP STEP OF A STAIRCASE AND THE LANDING IS NOT A GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1); RE: LABOR LAW 241(6), THE INDUSTRIAL CODE PROVISION REQUIRING COVERS OVER HAZARDOUS OPENINGS APPLIES ONLY TO OPENINGS A WORKER CAN COMPLETELLY FALL THROUGH (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined (1) tripping because of a gap between the top step of a staircase and the landing was not the type of gravity-related incident covered by Labor Law 240(1), (2) the industrial code provision requiring covers over hazardous openings applies only to openings through which a worker can completely fall through, and (3), the industrial code provision prohibiting tripping hazards was applicable:

… [T]he plaintiff’s injuries did not fall within the ambit of Labor Law § 240(1) because they did not occur as the result of an elevation-related or gravity-related risk … .

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … 12 NYCRR 23-1.7(b)(1)(i) provides that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing.” “The provision pertaining to ‘hazardous openings’ … does not apply to openings that are too small for a worker to completely fall through” … .

… Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on so much of the Labor Law § 241(6) cause of action as was predicated on a violation of 12 NYCRR 23-1.7(e)(1), which relates to tripping hazards … . Castro v Wythe Gardens, LLC, 2023 NY Slip Op 03329, Second Dept 6-21-23

Practice Point: Tripping over a gap between the top step of a staircase and the landing is not covered by Labor Law 240(1).

Practice Point: Re: Labor Law 241(6): The industrial code provision requiring covers over hazardous openings applies only to openings a worker can completely fall through.

 

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not present sufficient proof of compliance with the notice requirements of RPAPL 1304:

… [A]lthough the affidavit of the servicing agent stated that the 90-day notice was mailed to the defendant by certified mail and regular first-class mail, the affiant did not attest to having personally mailed the notices, nor that she was familiar with the mailing procedures of the entity that mailed the notices and that such procedures were designed to ensure that the notices were properly addressed and mailed …  The plaintiff also failed to submit documentation from the United States Postal Service proving the first-class mailing of the 90-day notice to the defendant … . U.S. Bank Trust, N.A. v Smith, 2023 NY Slip Op 03372, Second Dept 6-21-23

Practice Point: Once again, failure to demonstrate the RPAPL 1304 notice of foreclosure was properly mailed results in reversal of summary judgment.

 

EVIDENCE THAT THE LADDER TILTED CAUSING PLAINTIFF TO JUMP OFF WARRANTED 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 in this ladder fall case. It was enough that the ladder tilted causing plaintiff to jump off onto a plank below. Plaintiff alleged a nail which would have prevented the ladder from tilting was missing. Plaintiff’s actions were not the sole proximate cause of the injury:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . “‘In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries'” … .

Here, the plaintiff established, prima facie, that his injuries were proximately caused by a violation of Labor Law § 240(1) by submitting, inter alia, his deposition testimony that he was working on a ladder which tilted, causing him to lose his balance and jump onto the plank below … .

… The defendants’ contentions that the plaintiff leaned to one side while he was working and that he jumped off the ladder as it began to tilt were insufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his injuries … . Acevedo v PSM Long Is. Corp., 2023 NY Slip Op 03322, Second Dept 6-21-23

Practice Point: Evidence that the ladder tilted causing plaintiff to jump off warranted summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. The defendants’ contention that the ladder tilted because plaintiff leaned to the side did not raise a question of fact about whether plaintiff was the sole proximate cause of his injuries.

 

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OUTSTANDING DISCOVERY CONSTITUTED GOOD CAUSE FOR A LATE (POST-NOTE-OF-ISSUE) MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS LADDER-FALL CASE; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined outstanding discovery furnished good cause for plaintiff’s late (post-note-of-issue) motion for summary judgment in this Labor Law 240(1) ladder-fall case. The appellate division then reached the merits and granted plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action and granted defendant’s cross-motion for summary judgment on the Labor Law 200 cause of action:

… [P]laintiff demonstrated good cause for his delay in moving for summary judgment … . As an initial matter, we note that the court directed the plaintiff, over the plaintiff’s objection, to file a note of issue or face sanctions or dismissal of the action, despite the fact that a significant amount of discovery, including … the depositions of the parties, had yet to occur … . * * *

… [P]laintiff established … entitlement to judgment as a matter of law by demonstrating that his injuries were proximately caused by the defendants’ failures, as the owner and the general contractor at the construction site, to satisfy their nondelegable duty to provide him with a safe and adequate ladder necessary for him to perform his elevation-related work at the site … . * * *

… [D]efendants established … entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they did not create or have actual or constructive notice of the condition that the plaintiff alleged caused his injuries and that they had no authority to supervise or control the means and methods of the plaintiff’s work at the time of his accident … . Panfilow v 66 E. 83rd St. Owners Corp., 2023 NY Slip Op 03357, Second Dept 6-21-23

Practice Point: Outstanding discovery constitutes good cause for a late (post-note-of-issue) motion for summary judgment.

Practice Point: Plaintiff entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall cause.

Practice Point: Defendants entitled to summary judgment on the Labor Law 200 cause of action–no notice of the condition and no authority to control the means and methods of plaintiff’s work.

 

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