You are here: / Second Department

Tag Archive for: Second Department

,

A COURT REVIEWING THE DENIAL OF A FOIL REQUEST CANNOT BASE ITS RULING AFFIRMING THE DENIAL ON A GROUND NOT RAISED BY THE AGENCY TO WHICH THE REQUEST WAS MADE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court reviewing the denial of a FOIL request cannot base its ruling on a ground that was not cited by the agency to which the request was made:

“In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” …  This showing requires the agency “to articulate a particularized and specific justification for denying access,” and “[c]onclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” … .

“It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency” … . A reviewing court “‘is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'” … . Matter of McFadden v McDonald, 2022 NY Slip Op 02265, Second Dept 4-6-22

Practice Point: A court affirming the denial of a FOIL request cannot do so on a ground not raised by the agency to which the request was made.

 

,

RPAPL 1301(3) PROHIBITS MORE THAN ONE FORECLOSURE AT A TIME; THE VIOLATION OF THAT STATUTE HERE WAS A MERE IRREGULARITY WHICH SHOULD HAVE BEEN DISREGARDED; THE PRIOR ACTION WAS DISMISSED AFTER THE INSTANT ACTION WAS COMMENCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that RPAPL 1301(3), which prohibits more than one foreclosure at a time, was technically violated did not warrant dismissing the second action:

Here, the plaintiff failed to seek leave of court to commence this action while the 2010 action was still pending. However, the 2010 action had previously been marked disposed, and no further action occurred in the 2010 action until the administrative dismissal on April 9, 2018. Additionally, by the time the defendants cross-moved in this action for summary judgment dismissing the complaint insofar as asserted against them, the 2010 action had already been dismissed for nearly six months. Thus, the defendants were not prejudiced by having to defend against more than one action, and the plaintiff’s failure to strictly comply with RPAPL 1301(3) should have been disregarded as a mere irregularity … . HSBC Bank USA, N.A. v Kading, 2022 NY Slip Op 02255, Second Dept 4-6-22

Practice Point: Although RPAPL 1301(3) prohibits more than one foreclosure action at a time, if there is no prejudice to the borrowers a violation of that statute will be disregarded as a mere irregularity. Here the inactive first action was dismissed before the borrowers moved for summary judgment in the second.

 

, ,

THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners’ application to deem the late notice of claim timely served nunc pro tunc should not have been granted. Apparently petitioners’ child tripped and fell on a stairwell at at her school. The fact that the school was aware of the child’s injury at the time does not mean the school was aware of a potential lawsuit. The year-long delay was not adequately explained; infancy is not enough. And the petitioners did not show the school was not prejudiced by the delay:

The appellant’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim, at least where the incident and the injury do not necessarily occur only as the result of fault for which it may be liable” … . The petitioner mother stated in an affidavit submitted in support of the application that the school nurse called her on the day of the accident, advising her that her daughter fell on the stairs and injured her right foot. This statement, however, did not provide the appellant with actual knowledge of the facts underlying the petitioners’ claim of negligent supervision … .. Similarly, although the petitioner mother stated in her affidavit that she spoke to an employee of the appellant about the accident approximately two months after it occurred, the mother’s affidavit indicates that the employee had no information or details to share. Moreover, letters sent by the petitioners’ attorneys to the appellant did not advise it of the essential facts underlying the negligent supervision claim. J. G. v Academy Charter Elementary Sch., 2022 NY Slip Op 02251, Second Dept 4-6-22

​Practice Point: An application to serve a late notice of claim against a school may be granted if the school had timely knowledge of the claim. But that doesn’t mean timely knowledge of the injury or the incident. It means timely knowledge of the potential lawsuit.

 

, ,

ALTHOUGH DEFENDANTS WERE NOT PROPERLY SERVED IN THIS FORECLOSURE ACTION AND THEIR MOTION TO VACATE THE JUDGMENT WAS GRANTED ON THAT GROUND, THE DEFENDANTS’ ATTORNEY’S “LIMITED APPEARANCE” AT A SETTLEMENT CONFERENCE PROVIDED THE COURT WITH JURISDICTION OVER THE MATTER; THE MOTION TO VACATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an attorneys “limited appearance” at a foreclosure settlement conference provided the court with jurisdiction over matter despite the fact defendants demonstrated they were not properly served with the summons and complaint:

… [A]n attorney appeared in the action on behalf of the defendants by filing notices of appearance that represented that counsel was making “a limited appearance for the settlement conference pursuant to CPLR Rule 3408.” However, neither the defendants nor counsel for the defendants raised any objection to personal jurisdiction at that time by either a timely motion to dismiss on that ground or by interposing a timely answer asserting lack of personal jurisdiction … . Although the notices of appearance purported to limit counsel’s appearance to the foreclosure settlement conferences, “such language ‘is not a talisman to protect the defendant[s] from [their] failure to take timely and appropriate action to preserve [their] defense of lack of personal jurisdiction'” … . Since the defendants had waived the defense of lack of personal jurisdiction by failing to timely assert it, that defense was not a proper basis on which to vacate the order and judgment of foreclosure and sale … . US Bank N.A. v Chkifati, 2022 NY Slip Op 02151, Second Dept 3-30-22

Practice Point: Here defendants proved they were not properly served with the summons and complaint in this foreclosure action and Supreme Court granted their motion to vacate the judgment. However the appellate court reversed because the defendants’ attorney’s “limited appearance” for the settlement conferenced provided the court with jurisdiction (just as if defendants had been properly served).

 

, ,

THE BANK IN THIS FORECLOSURE ACTION DID NOT SEND DEFENDANT THE NOTICE OF DEFAULT IN A SEPARATE ENVELOPE AS REQUIRED BY RPAPL 1304; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action was entitled to summary judgment because the bank did not send the notice of default in a separate envelope as required by RPAPL 1304:

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.”

The defendant established that the plaintiff failed to strictly comply with RPAPL 1304, on the ground that additional material was sent in the same envelope as the 90-day notice required by RPAPL 1304 … . U.S. Bank N.A. v Hinds, 2022 NY Slip Op 02150, Second Dept 3-30-22

Practice Point: Here the borrower’s motion to dismiss the foreclosure complaint was granted because the bank sent the notice of default required by RPAPL 1304 in an envelope along with other materials, violating the “separate envelope” rule.

 

,

AT THE TIME THIS FORECLOSURE ACTION WAS COMMENCED, RPAPL 1304 REQUIRED THAT THE NOTICE OF DEFAULT INCLUDE THE NUMBER OF DAYS THE BORROWER HAD BEEN IN DEFAULT; A DISCREPENCY BETWEEN THE DATE OF THE DEFAULT IN THE 90-DAY NOTICE (JULY 2009) AND THE DATE IN THE NOTICE REQUIRED BY THE MORTGAGE AND IN THE COMPLAINT (MAY 2011) CREATED A QUESTION OF FACT WHETHER THE NOTICE WAS DEFECTIVE ON ITS FACE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action was not entitled to summary judgment because it failed to demonstrate compliance with the notice requirements of RPAPL 1304. At the time the action was commenced, RPAPL 1304 required the notice to state the number of days the borrower had been in default. The 90-day notice stated defendant had been in default 2330 days, which put the default in July 2009. But the notice required by the mortgage and the complaint stated defendant was in default since May 2011:

The 90-day notice sent to the defendant stated that, as of November 18, 2015, her loan was 2330 days in default—indicating a default date in July 2009. However, both the notice of default required by the mortgage agreement and the complaint alleged that the plaintiff had defaulted on the loan in May 2011. At least one of these three documents, then, contained an error concerning information that was required under RPAPL 1304. Notably, the plaintiff’s response to the defendant’s cross motion for summary judgment did not attempt to clarify this discrepancy; it only addressed the service of the 90-day notice. The plaintiff’s appellate brief likewise does not address this issue. Accordingly, the plaintiff did not eliminate the existence of a triable issue of fact as to whether the RPAPL 1304 notice was defective on its face … . U.S. Bank N.A. v Cox, 2022 NY Slip Op 02149, Second Dept 3-30-22

Practice Point: In this foreclosure action, the 90-day notice put the defendant’s default in July 2009, but the notice required by the mortgage and the complaint put the default in May 2011. This raised a question of fact whether the notice required by RPAPL 1304 was defective on its face.

 

,

ALTHOUGH THE MUNICIPALITY PROVED IT DID NOT HAVE WRITTEN NOTICE OF THE ICY SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, IT DID NOT PROVE THAT PILING SNOW ALONG THE EDGE OF THE SIDEWALK DID NOT CREATE THE ICY CONDITION; THE MUNICIPALITY WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality did not demonstrate it did not create the icy condition on the sidewalk where plaintiff slipped and fell by piling snow along the sidewalk which melted and froze:

“While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence, a municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement” … . Pirrone v Metro N. Commuter R.R., 2022 NY Slip Op 02144, Second Dept 3-30-22

Practice Point: Here the municipality did not prove it did not create the icy-sidewalk condition by piling snow removed from the sidewalk along the edge of the sidewalk where it melted and froze. Therefore, even though the municipality did not have written notice of the icy condition, there was a question of fact whether the municipality created the condition. The municipality’s motion for summary judgment should not have been granted.

 

, ,

A NOTE EXECUTED BY ONE TENANT BY ENTIRETY AND SECURED BY REAL PROPERTY OWNED BY BOTH TENANTS BY THE ENTIRETY, DONE WITHOUT THE OTHER TENANT BY THE ENTIRETY’S CONSENT, DOES NOT ENCUMBER THE OTHER TENANT BY THE ENTIRETY’S INTEREST IN THE REAL PROPERTY (SECOND DEPT).

The Second Department determined the note executed by Gladys Pajuelo and secured by a mortgage on property owned by Gladys and Celso Pajuelo as tenants by the entirety, done without Celso’s consent, did not encumber Celso’s interest in the property. Therefore the bank in this foreclosure action did not have an equitable mortgage on Celso’s interest:

Supreme Court properly denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Celso F. Pajuelo, declaring that the plaintiff has an equitable mortgage on Celso F. Pajuelo’s interest in the property. Where spouses own property as tenants by the entirety, a conveyance by one spouse, to which the other has not consented, cannot bind the entire fee … . Here, the mortgage executed by Gladys F. Pajuelo did not encumber Celso F. Pajuelo’s interest in the property, and the plaintiff failed to submit evidence to demonstrate its entitlement to an equitable mortgage against Celso F. Pajuelo’s interest in the property … . Nationstar Mtge., LLC v Pajuelo, 2022 NY Slip Op 02006, Second Dept 3-23-22

Practice Point: Where real property is owned by tenants by the entirety, and one of the tenants by the entirety, without the consent of the other, executes a note secured by the real property, the other tenant by the entirety’s interest is not encumbered.

 

,

THE MATERIAL MISREPRESENTATION THAT THERE WAS NO SWIMMING POOL ON THE PROPERTY JUSTIFIED THE DISCLAIMER OF COVERAGE FOR FIRE DAMAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer (Union Mutual) was entitled to rescission of the insurance policy based upon a material misrepresentation made by the plaintiff (the insured). The plaintiff-insured represented that there was no swimming pool on the property. After the property was damaged by fire, the insurer learned there was a swimming pool on the property and disclaimed coverage:

… Union Mutual established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff made misrepresentations on his application for insurance, and that it would not have issued the 2017 policy and the 2018 policy had the plaintiff disclosed that there was a swimming pool on the property … .. Union Mutual submitted with its motion for summary judgment an affidavit from its underwriter, along with Union Mutual’s Underwriting Guidelines for its New York Landlord/Tenant Property and General Liability Package Program, which provide that swimming pools are an unacceptable risk, and if a potential insured answered “yes” to the question on the application asking if there is a swimming pool on the property, no policy of insurance would issue. With these undisputed facts, Union Mutual demonstrated as a matter of law that the misrepresentations in the plaintiff’s applications for insurance were material. In opposition, the plaintiff failed to raise a triable issue of fact.

A material misrepresentation, even if innocent or unintentional, is sufficient to warrant rescission of an insurance policy … . Nabatov v Union Mut. Fire Ins. Co., 2022 NY Slip Op 02005, Second Dept 3-23-22

Practice Point: Here the insured represented to the insurer that there was no swimming pool on the property. After a fire the insurer learned there was a swimming pool on the property. The insurer demonstrated it would not have issued the policy if it had been aware of the swimming pool. The misrepresentation was therefore “material” and justified the denial of coverage for the fire.

 

,

THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the parking-lot-owner’s (RGP’s) motion for summary judgment in this slip and fall case should not have been granted under the storm-in-progress rule. The meteorologist’s affidavit was not accompanied by the records the affidavit relied upon:

… RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value … . Canciani v Stop & Shop Supermarket Co., LLC, 2022 NY Slip Op 01986, Second Dept 3-23-22

Practice Point: An affidavit submitted to prove the contents of records which are not attached has no probative value.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy