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WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s motion to change venue should have been denied. Unless a party follows the special procedure in CPLR 511(a) and (b), which requires making a demand on the other party before bringing a motion, a motion to change venue must be brought in the county where the action was started. Here the defendant did not use the special procedure and brought the motion to change venue in the county where defendant sought to move the proceedings. That was the wrong county for the motion:

This Court has stated that “[w]here . . . a motion to change venue . . . is made in the ‘wrong county’ and timely objection is raised to the improper venue of the motion itself, Special Term should deny the motion” … . Contrary to the defendant’s contention, neither CPLR 501 nor CPLR 511(b) provided a basis for it to notice the motion in Nassau County. Allen v Morningside Acquisition I, LLC, 2022 NY Slip Op 03219, Second Dept 5-18-22

Practice Point: Here the party made a motion to change venue in the county to which the party wanted venue changed. That was deemed the “wrong county” and the motion was dismissed because the party did not first use the special procedure in CPLR 511 (a) an (b) which requires making a demand on the other party before bringing the motion.

 

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​ WHEN THE FAILURE TO PRESENT FACTS IN A PRIOR MOTION IS NOT JUSTIFIED, THE SECOND MOTION DOES NOT FIT THE CRITERIA FOR A MOTION TO RENEW OR AN ALLOWABLE SUCCESSIVE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion in this foreclosure action did not fit the criteria for a motion to renew or an allowable successive summary judgment motion. The judgment of foreclosure should not have been granted;

“When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” … . Here, the plaintiff failed to provide any justification for its failure to present the new evidence supporting its renewal 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” … . Wells Fargo Bank, N.A. v Osias, 2022 NY Slip Op 03275, Second Dept 5-18-22

Practice Point: Attempting to bring a second motion which includes “new” facts, without a reasonable justification for leaving them out of the first motion, does not fit the criteria for a motion to renew or an allowable successive summary judgment motion.

 

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CLAIMANTS’ MOTION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM IN THIS CONSTRUCTION-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ should have been allowed to file a late notice of claim in this construction accident case. The delay in filing was minimal, claimants made a sufficient showing the defendants were not prejudiced by the delay and defendants did not demonstrate prejudice:

The claimants showed that any delay in ascertaining actual notice of all of the essential facts underlying the claims was minimal … , and that the defendants were provided with an adequate opportunity to investigate the circumstances underlying the claims in light of, among other things, the information contained in an accident report and a medical release, which were both prepared by the defendants’ general contractor on the date of the accident…. . …

… [T]he defendants failed to come forward with “a particularized evidentiary showing that [they] will be substantially prejudiced” if the late claims are permitted … . Schnier v New York State Thruway Auth., 2022 NY Slip Op 03267, Second Dept 5-18-22

Practice Point: The claimants adequately demonstrated defendants in this construction-accident case were not prejudiced by the minimal delay in filing the notice of claim and defendants were unable to demonstrate any prejudice as they had time to investigate the incident after timely receiving the accident report. Claimants’ motion for leave to file and serve a late notice of claim should have been granted.

 

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IN THIS FORECLOSURE ACTION, THE RPAPL 1304 NOTICE DID NOT INCLUDE THE REQUIRED INFORMATION AND THE PROOF OF MAILING OF THE NOTICE WAS DEFICIENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined proof of mailing of the RPAPL 1304 notice and failure to comply with the content-requirements for the RPAPL 1304 notice in this foreclosure action warranted denial of the plaintiff’s motion for summary judgment:

The respondent failed to establish the plaintiff’s strict compliance with RPAPL 1304. The respondent submitted an affidavit of Alfreda Johnson, a “Foreclosure Specialist” of Fay Servicing, LLC (hereinafter Fay), the plaintiff’s servicer. Johnson did not have personal knowledge of the purported mailing … . Furthermore, while Johnson averred that she was familiar with Fay’s mailing practices and procedures, the record indicates that the notices were not mailed by Fay. The record indicates that the notices were mailed by an entity known as “Seterus” … . Johnson does not address this fact at all, let alone demonstrate that she was familiar with Seterus’s mailing practices and procedures. Thus, the respondent failed to establish that the 90-day notices were properly mailed in strict compliance with RPAPL 1304 … .

Moreover, the content of the 90-day notices did not strictly comply with RPAPL 1304 … . Here, the 90-day notices omitted information that was required by RPAPL 1304 … . Prof-2014-S2 Legal Tit. Trust II v DeMarco, 2022 NY Slip Op 03263, Second Dept 5-18-22

Practice Point: Here, in this foreclosure action, not only was proof of mailing the RPAPL 1304 notice insufficient, but the notice did not include all the required information.

 

BECAUSE DEFENDANT OBJECTED TO THE AMOUNT OF RESTITUTION A HEARING TO DETERMINE THE AMOUNT SHOULD HAVE BEEN HELD (SECOND DEPT).

The Second Department, reversing County Court, determined, because the defendant objected to the restitution-amount, a hearing to determine the amount was required:

“‘Before a defendant may be directed to pay restitution a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing'” … .

Here, the defendant objected to the amount of restitution payable to the complainant, and the record was insufficient to establish the value of damages to the complainant’s property in the amount of $7,630 … . People v Jensen, 2022 NY Slip Op 03250, Second Dept 5-18-22

Practice Point: Where a defendant objects to the amount of restitution and the record is insufficient to establish the proper amount, a hearing must be held.

 

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THE DIVORCE STIPULATION OF SETTLEMENT REQUIRED DEFENDANT TO PAY THE CHILDREN’S COLLEGE EXPENSES FOR FOUR YEARS AND DID NOT MENTION AN AGE CUT-OFF; SUPREME COURT SHOULD NOT HAVE DETERMINED DEFENDANT’S OBLIGATION CEASED AT AGE 21 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation of settlement in the divorce stated that defendant would pay the children’s college expenses for four years with no mention of a cut-off at age 21. Supreme Court should not have ruled that the obligation ceased when the child turned 21:

… [T]he stipulation clearly and unambiguously required the defendant to pay 50% of the costs and expenses for each child’s college education for a total of four years, though his obligation to contribute to room and board expenses would be offset by any child support payments he made during that time. Contrary to the defendant’s contention, no age limitation or restriction was placed on his obligation to pay his share of these costs and expenses, and the stipulation cannot be fairly interpreted to provide that this obligation terminated upon the child’s emancipation … . Pape v Pape, 2022 NY Slip Op 03246, Second Dept 5-18-22

Practice Point: Here the divorce stipulation of settlement clearly stated defendant was obligated to pay the children’s college expenses for four years. Supreme Court should not have ruled the obligation ceased at age 21.

 

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PETITIONER DEMONSTRATED A GOOD FAITH EFFORT TO TIMELY FILE AND SERVE HIS OPPOSITION PAPERS AND DEMONSTRATED A POTENTIALLY MERITORIOUS CAUSE OF ACTION; SUPREME COURT HAD REFUSED TO CONSIDER THE OPPOSITION PAPERS BEFORE ISSUING ITS ORDER DISMISSING THE PETITION; THE ORDER SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s motion to vacate an order dismissing the petition issued after Supreme Court refused to consider petitioner’s opposition papers should have been granted. Petitioner had made a good faith effort to timely file and serve the papers and demonstrated a potentially meritorious cause of action:

The petitioner, who had until July 13, 2018, to submit opposition papers to the respondents’ motion, filed pro se opposition papers with the court on July 13, 2018. He failed, however, to properly serve the respondents with a copy of the opposition papers, or to provide the court with proper proof of service. Nonetheless, the petitioner did file with the court a defective affidavit of service, in which dates of service were blank and which was neither signed nor notarized. Moreover, a copy of the opposition papers that the petitioner had emailed to the respondents was later discovered in the “junk” email folder of the respondents’ counsel. “Clearly, the [petitioner] made a good faith, albeit unsuccessful, attempt to timely . . . respond to the motion,” and the court “should have considered the absence of any evidence that the [petitioner’s] default was intentional, made in bad faith, or with an intent to abandon the action” … .

… [T]he petitioner’s arguments in support of the amended petition demonstrate a potentially meritorious cause of action … . Lastly, the respondents have “neither alleged nor established that [they] would be prejudiced by vacating the default and hearing the matter on the merits” … . Matter of Brennan v County of Rockland, 2022 NY Slip Op 03240, Second Dept 5-16-22

Practice Point: Here petitioner’s good faith effort to timely file and serve his opposition papers demonstrated he did not intend to abandon the action. Supreme Court should not have refused to consider his opposition papers before issuing its order dismissing the petition. The order should have been vacated.

 

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PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s counsel should have been found in criminal contempt for issuing subpoenas in defiance of Supreme Court’s order staying any further action in the case:

In contrast to civil contempt, because the purpose of criminal contempt is to vindicate the authority of the court, no showing of prejudice is required … . Instead, “[a]llegations of willful disobedience of a proper judicial order strike at the core of the judicial process and implicate weighty public and institutional concerns regarding the integrity of and respect for judicial orders” … . …

Notwithstanding [the court’s order], the plaintiff’s counsel issued subpoenas on six separate occasions. When … the Supreme Court reiterated the terms of the stay, both via interim relief granted in the order to show cause and in a separate order, the plaintiff’s counsel did not desist but instead served four more subpoenas and moved to compel the production of subpoenaed documents. This conduct evidences a lack of “respect for judicial orders” and warranted holding the plaintiff’s counsel in criminal contempt … . Under the circumstances of this case, we deem the statutory maximum sanction of $1,000 per offense warranted and therefore impose a total sanction of $10,000. Madigan v Berkeley Capital, LLC, 2022 NY Slip Op 03237, Second Dept 5-18-22

Practice Point: Criminal contempt seeks to vindicate the authority of the court. Therefore no showing of prejudice is required. Here plaintiff’s counsel issued subpoenas in defiance of an order of the court. A $10,000 sanction for criminal contempt was imposed on the attorney by the appellate court.

 

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ALTHOUGH A FORECLOSURE ACTION USUALLY ACCELERATES THE DEBT AND STARTS THE STATUTE OF LIMITATIONS CLOCK, HERE THE DEFENDANTS-BORROWERS DID NOT DEMONSTRATE THAT THE 2009 FORECLOSURE ACTION SOUGHT THE ENTIRE AMOUNT DUE (THE 2009 COMPLAINT WAS NOT SUBMITTED); THEREFORE THE DEFENDANTS DID NOT DEMONSTRATE THE INSTANT ACTION IS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants-borrowers in this foreclosure action did not demonstrate the debt was accelerated by the 2009 foreclosure action. Therefore the complaint in the instant action should not have been dismissed as untimely:

… [T]he defendants failed to demonstrate that the debt was validly accelerated by the commencement of the 2009 action. In support of their respective motions, the defendants submitted only the summons with notice from the 2009 action, which did contain a statement that BAC sought “payment of the full balance due,” and a printout of the WebCivil Supreme-Case Detail related to the instant action … . Since the defendants did not submit the complaint or the notice of pendency filed in the 2009 action, it cannot be determined whether those documents elected to accelerate the mortgage loan … . GSR Mtge. Loan Trust v Epstein, 2022 NY Slip Op 03232, Second Dept 5-18-22

Practice Point: To demonstrate that a prior foreclosure action accelerated the debt and thereby started the statute of limitations clock, proof that the prior action called for payment of the entire debt must be submitted. Here the defendants-borrowers did not submit the 2009 foreclosure complaint and therefore did not prove the debt was accelerated by the 2009 foreclosure action.

 

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THE BANK’S PROOF OF DEFENDANT’S DEFAULT, MAILING OF THE NOTICE OF DEFAULT, AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE IN THIS FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s proof of defendant’s default and mailing of the notice of default was insufficient in this foreclosure action:

… [T]he plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendant’s default and that it complied with the notice of default provisions in the mortgage. In support of its motion, the plaintiff submitted an affidavit of Sonja Manderville, who averred that, in her position as a contract management coordinator of … the plaintiff’s loan servicer, she has access to and is familiar with the business records related to the mortgage loan at issue. She averred that the records “were made at or near the time of the Transactions documented thereby by a person with knowledge of the Transactions . . . and are maintained in the regular and usual course of business.” However, Manderville failed to aver to familiarity with the record-keeping practices and procedures of the entity that generated the records or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business … .

… Manderville failed to identify the records upon which she relied, and the plaintiff failed to submit copies of the records themselves. …

… Manderville’s assertions regarding the purported mailing of the notice of default were insufficient to establish a mailing … .Manderville failed to allege familiarity with the mailing practices and procedures of the third party that allegedly sent the notice of default in 2009 … . Since the plaintiff failed to provide evidence of the actual mailing, or “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure,” the plaintiff failed to establish that the notice of default was sent in accordance with the terms of the mortgage … . Deutsche Bank Natl. Trust Co. Ams. v Banu, 2022 NY Slip Op 03231, Second Dept 5-18-22

Practice Point: In this foreclosure action, the affidavit submitted by the bank to demonstrate defendant’s default and the mailing of the notice of default was deficient and the relevant business records were not submitted. These “foundational-affidavit” problems and the failure to submit the records referenced in the foundational affidavit have required reversal on appeal in literally hundreds cases over the last five or more years.

 

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