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HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:​

The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … . “Necessary parties are defined as ‘[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'” … . “The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” …. “Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort” …. Therefore, “[w]hen a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned” … .

Supreme Court improperly rejected the respondents’ contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board’s resolution …  as appointed Tucci to his position [with the Village Fire Department], and the court granted that request. Since Tucci was a person “who might be”—and in fact was—”inequitably affected by a judgment” in this proceeding (CPLR 1001[a]), he was a necessary party … . Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party … .

… [D]ismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens … . Instead, “[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)” … . Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd., 2025 NY Slip Op 04793, Second Dept 8-27-25

Practice Point: Consult this decision for a definition of “necessary parties” within the meaning of CPLR 1001(b) and an explanation of the proper procedure for dealing with the failure to join a necessary party.

 

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STATEMENTS IN BOLD LETTERS ON THE BOTTOM OF EACH PAGE OF THE RPAPL 1304 NOTICE OF FORECLOSURE, AS WELL AS A CONSUMER NOTICE PURSUANT TO 15 USC SECTION 1692G, DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined statements included with the RPAPL 1304 90-day notice-of-foreclosure did not violate the “separate envelope” rule:

“The ‘separate envelope’ mandate of RPAPL 1304(2) provides that ‘[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice'” … . Here, in support of her cross-motion, the defendant presented evidence that the 90-day notices included an additional statement, in bold letters, at the bottom of each page, indicating that the notice was “AN ATTEMPT TO COLLECT A DEBT” and that “ANY INFORMATION OBTAINED . . . WILL BE USED FOR THAT PURPOSE,” as well as a consumer notice pursuant to 15 USC § 1692g. However, the subject language does not constitute an “other mailing or notice” in violation of the separate envelope mandate of RPAPL 1304(2). The additional material consisted of “accurate statements that further the underlying statutory purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure” … . HSBC Bank USA, N.A. v Berry, 2025 NY Slip Op 04769, Second Dept 8-27-25

Practice Point: The separate envelope rule which requires that the RPAPL 1304 notice of foreclosure be sent “in a separate envelope from any other mailing or notice” was not violated here by statements in bold letters on the bottom of each page of the RPAPL 1304 notice or by the inclusion of a consumer notice pursuant to 15 USC section 1692g.

 

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ALTHOUGH THE RPAPL 1304 NOTICE OF FORECLOSURE COMPLIED WITH THE STATUTE WHEN IT WAS SENT, IT DID NOT COMPLY WITH THE VERSION OF THE STATUTE IN EFFECT WHEN THE ACTION WAS COMMENCED; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the RPAPL 1304 notice of foreclosure was sufficient at the time it was served, it did not meet the RPAPL 1304 notice requirements at the time the action was brought:

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “‘Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action'” … . “Where an RPAPL 1304 notice fails to reflect information mandated by the statute, . . . the statute will not have been strictly complied with and the notice will not be valid” … .

Here, although the language in a 90-day notice sent … in November 2016 complied with the language set forth in RPAPL 1304 as it existed at the time the notice was mailed … , the plaintiff failed to establish, prima facie, that the notice complied with the language set forth in RPAPL 1304 as it existed at the time this action was commenced in December 2018 … . Since there was more than a two-year period between the time that the notice was sent and the time that the action was commenced, “[n]othing prevented the plaintiff from sending the defendant a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing this action” … . Accordingly, as the plaintiff failed to establish, prima facie, strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint … . Wilmington Sav. Fund Socy., FSB v Scarso, 2025 NY Slip Op 04745, Second Dept 8-20-25

Practice Point: RPAPL 1304 must be strictly complied with. Here the RPAP 1304 notice of foreclosure complied with the statute when it was sent, but not when the action was commenced. The bank’s summary judgment motion should have been denied.

 

A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action:

“CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action” … . “Since CPLR 3216 is a legislative creation and not part of a court’s inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint” … .

Here, the two 90-day notices served by the defendant and an order issued by the court were all defective in that they did not state that the plaintiff’s failure to comply with the demands contained therein would serve as a basis for a motion to dismiss the complaint for failure to prosecute … . Accordingly, the Supreme Court should have denied the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint. Terryn v Rubin, 2025 NY Slip Op 04741, Second Dept 8-20-25

Practice Point: A ninety-day demand which fails to state dismissal of the action will result from a failure to comply is defective and has no effect.

 

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THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a weapon seized from a car in which defendant was a passenger should not have been granted. Defendant, who had no possessory interest in the car, did not have standing to contest the search of the car. The People did not rely on the statutory presumption that the occupants of a car possess contraband in the car. Rather, the People relied on the testimony of an officer who saw the defendant put an object under his seat. The barrel of the seized gun was in plain view:

A vehicle passenger with no ownership or possessory interest in the vehicle does not have a legitimate expectation of privacy in its interior … . As a result, a passenger in a car who is not charged with possession of a weapon or drugs under a statutory presumption (see Penal Law § 265.15[3] …) has no standing to challenge the search of the vehicle once it has been lawfully stopped … . Here, the People did not rely on the statutory presumption of possession but instead relied on the direct observations of a police detective. Specifically, the police detective testified at the suppression hearing that, during the initial stop of the vehicle in which the defendant was a passenger, the detective observed the defendant reach between his legs and place something under his seat. After the defendant had been removed from the vehicle, the detective looked through the windshield and saw, underneath the front passenger seat in the area where he had seen the defendant place something, the front of the barrel of a gun in plain view. Because the People relied on that testimony rather than any statutory presumption to establish possession of the gun, the defendant did not have standing to challenge the search of the vehicle in which he was a passenger and had no ownership interest … . Moreover, the defendant does not challenge the legality of the vehicular stop, which, in any event, was found by the court to have been lawful—a determination that may not be reviewed on this appeal (see CPL 470.15[1] …). Accordingly, the defendant failed to establish his standing to challenge the search of the vehicle and the seizure of the gun … . People v Knight, 2025 NY Slip Op 04736, Second Deppt 8-20-25

Practice Point: A passenger in a car who has no ownership or possessory interest in the car does not have standing to contest the search of the car unless the People rely on the statutory presumption, i.e., the occupants of a car possess contraband in the car. Here the People relied on testimony from an officer who saw the defendant put an object on the floor of the car under his seat and the barrel of the gun was in plain view. The defendant had no ownership or possessory interest in the car. The People did not rely on the statutory presumption. So defendant did not have standing move to contest the search of the car.

 

IN THIS DISPUTE BETWEEN PLAINTIFF BEER DISTRIBUTORS AND DEFENDANT BEER COMPANY, THE SECOND DEPARTMENT HELD THAT ALCOHOLIC BEVERAGE CONTROL ACT SECTION 55-C(4), WHICH PROHIBITS TERMINATION OF A DISTRIBUTION AGREEMENT WITHOUT GOOD CAUSE AND AN OPPORTUNITY TO CURE, APPLIES TO BOTH WRITTEN AND ORAL CONTRACTS; THE COURT WENT ON TO FIND THAT THE COMPLAINT, WHICH WAS BASED ON AN ORAL DISTRIBUTION AGREEMENT, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF SECTION 55-C(4) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hom, in a matter of first impression, determined the “Alcoholic Beverage Control Act § 55-c(4) [hereinafter “the Act”], which prohibits the termination of agreements between brewers and beer wholesalers without good cause and an opportunity to cure, applies to non-written agreements.” Plaintiffs are beer distributors. Plaintiffs’ distribution contracts with defendant beer company (Yuengling) were oral. Defendant purported to terminate plaintiffs’ distribution contracts. In response to plaintiffs’ lawsuit alleging violation of the Act, defendants argued the Act does not apply to oral contracts. The Second Department held that the Act does apply to oral contracts, but determined the complaint did not state a cause of action for breach of the Act

:…[W]e conclude that the amended complaint in this action failed to state a cause of action alleging violations of Alcoholic Beverage Control Law § 55-c because the plaintiffs failed to plead the essential and material terms of their alleged distribution agreements. Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 2025 NY Slip Op 04730, Second Dept 8-20-25

Practice Point: Consult this decision for a statutory-interpretation analysis where the statute is ambiguous. The issue here was whether a statute, which required that any termination of a beer distribution agreement be for good cause with an opportunity to cure, applied to both written and oral contracts. The court resolved the ambiguity in favor of protecting oral as well as written agreements.

 

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PLAINITFF’S AGENTS WHO MAILED THE RPAPL 1304 NOTICE OF FORECLOSURE WERE NOT IDENTIFIED IN PLAINTIFF’S AFFIDAVIT OFFERED IN SUPPORT OF SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING; ALSO, THE AFFIDAVIT PROVIDED NO FOUNDATION FOR SUBMITTED DOCUMENTS FROM A THIRD-PARTY VENDOR; THEREFORE PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit submitted by the plaintiff in this foreclosure action to demonstrate the proper mailing of the RPAPL 1304 notice of foreclosure was deficient, requiring denial of plaintiff’s motion for summary judgment:

… [P]laintiff submitted an affidavit of Connie Melendez, an employee of the plaintiff. … Melendez’s affidavit failed to establish that notice was sent … in the manner required by RPAPL 1304. While Melendez averred that she had personal knowledge of the plaintiff’s standard office mailing procedures and described those purported procedures, she acknowledged that the mailings were carried out “by and through [the plaintiff’s] agents.” However, Melendez did not identify who those agents were or attest that she was familiar with their standard office mailing procedures. Thus, Melendez’s affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, Melendez’s affidavit failed to address the nature of the plaintiff’s relationship with a certain third-party vendor and whether the third-party vendor’s records were incorporated into the plaintiff’s own records or routinely relied upon in the plaintiff’s business … . Thus, Melendez’s affidavit failed to lay a foundation for the admission of a transaction report generated by the third-party vendor … . Finally, “the tracking numbers on the copies of the . . . notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . Likewise, a “Proof of Filing Statement” from the New York State Banking Department pursuant to RPAPL 1306 failed to establish, prima facie, the plaintiff’s compliance with the requirements of RPAPL 1304 … . For the same reasons, the plaintiff failed to establish, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage agreement was properly transmitted prior to the commencement of this action … . Nationstar Mtge., LLC v Ricks, 2025 NY Slip Op 04728, Second Dept 8-20-25

Practice Point: Agents who mailed the RPAPL 1304 notice were not identified in plaintiff’s affidavit and plaintiff’s relationship with a third party vendor was not demonstrated. Therefore the affidavit submitted by plaintiff in this foreclosure action did not prove proper mailing of the notice of foreclosure and did not demonstrate compliance with related provisions in the mortgage agreement.

 

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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services’ [if] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the dismissal of father’s parental access petition for failure to prosecute was not warranted. Father lived in Florida, had made appearances virtually, and, although he did not appear at the last court date, his attorney was present:

… [F]ather commenced this proceeding pursuant to Family Court Act article 6 for parental access with the child. The Family Court directed the parties to cooperate with a clinical assessment program in New York so as to aid the court in making a parental access determination. However, the father, who lived in Florida, alleged that he was financially unable to participate in the program and to travel to New York. He also informed the court that he was initially seeking to have only telephone contact with the child. Following several virtual appearances by the father, the court advised the father that he would no longer be permitted to appear virtually, citing the father’s disruptions during his prior virtual appearances. Thereafter, prior to the next scheduled court appearance, the father made “multiple” requests to be able to appear virtually but the court denied his requests. While the father was not present at the next scheduled court appearance, his attorney was present. … [T]he court dismissed the petition without prejudice for failure to prosecute. …

“[D]ismissal is a harsh remedy which ought not to be imposed without the utmost caution” … . A petition should not be dismissed for failure to prosecute where there is no indication of intentional default or willful abandonment … . Here, inasmuch as the father made several appearances in the proceeding virtually and appeared through counsel during the latest scheduled court appearance, the record does not reflect that the father willfully abandoned his parental access petition … . Matter of Lopez v Estrella, 2025 NY Slip Op 04649, Second Dept 8-13-25

Practice Point: Dismissal of a parental access petition for failure to prosecute is a harsh remedy which was not justified in this case. Father lived in Florida and appeared virtually. His requests to continue to appear virtually were denied. He was seeking only telephonic contact with the child. There was no indication of intentional default or willful abandonment of the petition.

 

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STRICT COMPLIANCE WITH THE NOTICE OF FORECLOSURE PROVISIONS IN RPAPL 1304 IS REQUIRED; HERE THE BANK FAILED TO SHOW THAT IT SENT RPAPL 1304 NOTICES ADDRESSED INDIVIDUALLY TO DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with the notice of foreclosure requirements of RPAPL 1304 precluded summary judgment:

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304(2) states that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice” … .

… [A] “‘defense based on noncompliance with RPAPL 1304 may be raised at any time'” prior to the entry of a judgment of foreclosure and sale … . … [T]he plaintiff failed to establish its strict compliance with the service requirements of RPAPL 1304. … [T]he plaintiff failed to show that it sent RPAPL 1304 notices addressed individually to each of those defendants as required by the statute … . HSBC Bank USA, N.A. v Stein, 2025 NY Slip Op 04638, Second Dept 8-13-25

Practice Point: Strict compliance with the notice of foreclosure provisions of RPAPL 1304 is required. The notices must be sent to defendants individually.

 

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