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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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ALTHOUGH THE INITIAL INVOLUNTARY ADMISSION OF A MENTALLY ILL PATIENT REQUIRES CERTIFICATION BY LICENSED PHYSICIANS, A NURSE PRACTITIONER IS COMPETENT TO TESTIFY AT THE SUBSEQUENT RETENTION HEARING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Love, determined that, at a hearing pursuant to Mental Hygiene law sections 9.31 and 9.33 to retain an involuntary patient, the petitioner can rely on the testimony of a nurse practitioner. The controlling statute does not require the testimony of a licensed physician:

Mental Hygiene Law § 9.27 et seq. establishes the procedure for the involuntary admission and retention of patients alleged to be mentally ill in a hospital. Pursuant to that section, a patient may be initially involuntarily admitted to a hospital upon the certification of two examining physicians, which must then be confirmed by a third physician who is a member of the psychiatric staff of that hospital … . A question of first impression before this Court on this appeal is whether, at a hearing held pursuant to Mental Hygiene Law §§ 9.31 and 9.33 to retain an involuntary patient, the petitioner must furnish the testimony of a licensed physician rather than a nurse practitioner. * * *

There is no support in the statute or any related regulations for the proposition that the petitioner must establish its prima facie burden through physician testimony. Moreover, it reasonably can be argued that requiring the testimony of a physician, who may have comparably less knowledge of a specific patient’s mental condition compared to an experienced nurse practitioner who interacts extensively with that patient, would be a disservice to the court and the parties. The court, hearing the testimony and evidence in its totality, is in the best position to determine the value and credibility of a witness in determining these matters. Accordingly, we conclude that a nurse practitioner is competent to testify at a hearing held pursuant to Mental Hygiene Law §§ 9.31(c) and 9.33(c). Matter of Raymond E., 2025 NY Slip Op 04006, Second Dept 7-2-25

Practice Point: A nurse practitioner is competent to testify at a retention hearing pursuant to Mental Hygiene Law section 9.31 and 9.33.

 

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BY SUBMITTING A CLAIM TO THE “SEPTEMBER 11TH VICTIM COMPENSATION FUND” (VCF), PLAINTIFF, WHO ALLEGED HIS PROSTATE CANCER WAS RELATED TO HIS WORK AT THE WORLD TRADE CENTER AFTER SEPTEMBER 11TH, WAIVED HIS RIGHT TO SUE HIS PHYSICIAN FOR AN ALLEGED DELAY IN DIAGNOSIS AND TREATMENT OF THE PROSTATE CANCER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the plaintiff’s submission of a claim to the September 11th Victim Compensation Fund (VCF) precluded his medical malpractice action. Plaintiff submitted the claim to VCF alleging his prostate cancer was related to his work at the World Trade Center after September 11th. Years later, in 2021, plaintiff sued his physician alleging a delay in diagnosing and treating the prostate cancer. Apparently the VCF claim was made close in time to the filing of the lawsuit. By filing the VCF claim, plaintiff waived the right to bring a civil lawsuit based on the prostate cancer:

“… [T]he Air Stabilization Act * * * created the [VCF]  . . . to provide no-fault compensation to victims who were injured in the attacks and to personal representatives of victims killed in the attacks … ; and provided an election of remedies —all claimants who filed with the [VCF] waived the right to sue for injuries resulting from the attacks except for collateral benefits” … .

The Air Stabilization Act was amended by the Aviation and Transportation Security Act … . * * *  The waiver provision now provides:

“Upon the submission of a claim under this title, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal. Brennan v MacDonald, 2025 NY Slip Op 03994, Second Dept 7-2-25

Practice Point: Submitting a claim to the September 11th Victim Compensation Fund (VCF) waives the right to bring a civil suit based on the subject of the claim. Here plaintiff alleged his prostate cancer was related to work at the World Trade Center. Because he submitted a VCF claim for the prostate cancer, he cannot sue his physician for medical malpractice alleging a delay in diagnosis and treatment.

 

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CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive full-fledged opinion by Justice Golia, in a matter of first impression, determined CPLR 7003(1), which requires a judge to forfeit $1000 when a petitioner’s request for habeas corpus relief is improperly denied, is unconstitutional. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine:

… [W]hile CPLR 7003(c) is not a direct diminution of judicial compensation, the language of that provision explicitly “targets judges for disadvantageous treatment,” as it provides that a $1,000 forfeiture be paid personally by a judge who does not issue a writ of habeas corpus where one should have been issued … . CPLR 7003(c) is, thus, an indirect diminution of the salary of judges within the meaning of the Compensation Clause of the New York State Constitution. Accordingly, the Supreme Court properly determined that “[b]y its nature, CPLR 7003(c) singles out judges for financially adverse treatment because of their exercise of their judicial functions and does so in a manner that discriminates based on how they decide an application for a writ. To impose a forfeiture on a judge based on which way they decide an application undermines the core objective of the [C]ompensation [C]lause of protecting judicial independence.” * * *

By imposing a penalty on a judge who refuses a petitioner’s request for habeas corpus [*14]relief where such relief should have been issued, the Legislature, through CPLR 7003(c), is interfering with judicial functions by incentivizing one specific outcome, namely, issuance of the writ, because a judge only faces a penalty if he or she refuses to issue a writ. Such influence is impermissible, as “‘the mere existence of the power to interfere with or to influence the exercise of judicial functions contravenes the fundamental principles of separation of powers embodied in our State constitution and cannot be sustained'” … . Poltorak v Clarke, 2025 NY Slip Op 04496, Second Dept 7-30-25

Practice Point: CPLR 7003(1) requires a judge to forfeit $1000 for an improper denial of habeas corpus relief. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine.

 

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FAILURE TO REJECT A LATE ANSWER WITHIN 15 DAYS WAIVES LATE SERVICE AND THE DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff waived any objection to late service of the answer by not rejecting it within 15 days:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections” … . Here, the plaintiff’s undisputed failure to reject [the] answer within the 15-day statutory time frame constituted a waiver of the late service and the default … . Moreover, the plaintiff did not move for leave to enter a default judgment against [defendants] … . Therefore, the Supreme Court should not have rejected the answer … .Globalized Realty Group, LLC v Crossroad Realty NY, LLC, 2025 NY Slip Op 03797, Second Dept 6-25-25

Practice Point: Failure to reject a late answer following the procedure in CPLR 2101(1) waives late service and the default.

 

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WHERE AN UNSECURED LADDER MOVES AND PLAINTIFF FALLS, PLAINTIFF CANNOT BE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT; THEREFORE PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case:

… [P]laintiffs established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of the injured plaintiff’s injuries by submitting evidence that the unsecured ladder moved and fell, causing the injured plaintiff to fall, and that he was not provided with any safety devices … .

In opposition … defendants … failed to raise a triable issue of fact as to whether the injured plaintiff’s alleged misuse of the ladder was the sole proximate cause of the accident. Where, as here, the injured plaintiff is provided with an unsecured ladder and no safety devices, he cannot be held solely at fault for his injuries … . Garcia v Fed LI, LLC, 2025 NY Slip Op 03795, Second Dept 6-25-25

Practice Point: As long as the failure to provide adequate safety equipment is a proximate cause of a ladder fall, i.e., the failure to secure the ladder to prevent movement, defendant will not be able to win the argument that plaintiff’s actions were to sole proximate cause of the accident. Plaintiff will be entitled to summary judgment on the Labor Law 240(10 cause of action.

 

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IN THIS CHILD VICTIMS ACT CASE AGAINST A TEACHER, PLAINTIFF’S MOTION TO AMEND THE BILL OF PARTICULARS TO ADD DEPOSITION TESTIMONY CONCERNING STATEMENTS MADE BY WITNESSES TO PLAINTIFF’S ATTORNEYS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act suit, determined plaintiff should have been allowed to amend the bill of particulars to add deposition testimony which included witness statements made to plaintiff’s attorneys concerning the defendant teacher:

“Pursuant to CPLR 3025(b), leave to amend or supplement a pleading is to be ‘freely given'” … . “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “The burden of proof in establishing prejudice or surprise, or that the proposed amendment lacks merit, falls to the party opposing the motion for leave to amend” … . “[T]he decision of whether to grant or deny leave to amend is subject to the discretion of the trial court” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to amend the bill of particulars to include the proposed witness’s statements to [plaintiff’s attorneys]. The proposed amendment was not palpably insufficient or patently devoid of merit … . In this case, having failed to oppose the motion, the District defendants failed to satisfy their burden of demonstrating any prejudice or surprise … . Fitzpatrick v Pine Bush Cent. Sch. Dist., 2025 NY Slip Op 03794, Second Dept 6-25-25

Practice Point: Amendments to pleadings should be freely allowed. Here deposition testimony about vague and contradictory statements made to plaintiff’s counsel by witnesses concerning defendant teacher’s alleged interaction with students can properly be added to the bill of particulars, criteria explained.

 

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A PARTY WHO IS NOT A OBLIGOR ON THE NOTE, BUT IS A SIGNATORY ON THE MORTGAGE, IS SUBJECT TO FORECLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant (Lucy), who was not an obligor on the note, but who executed the mortgage, was subject to foreclosure:

A party who is not an obligor on a note but is a signatory on the corresponding mortgage, while not personally liable for the debt, is a mortgagor and has agreed to mortgage his or her interest in the property as security for the debt … . Here, although Lucy did not execute the Obligation to Pay and is not personally liable for the payment obligation, she executed the mortgage whereby she pledged her interest in the property as security for the obligations set forth in the co-ownership agreement and the Obligation to Pay, and thus, Lucy’s interest in the property is subject to foreclosure … . Deutsche Bank Trust Co. Ams. v Zzoha, 2025 NY Slip Op 03793, Second Dept 6-25-25

Practice Point: A party who is not on obligor on the note but is a signatory on the corresponding mortgage is subject to foreclosure.

 

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RPAPL 1306 REQUIRES INFORMATION TO BE FILED WITH THE SUPERINTENDENT OF FINANCIAL SERVICES WITHIN THREE BUSINESS DAYS OF THE MAILING OF THE NOTICE OF FORECLOSURE; THE FILING IS A CONDITION PRECEDENT TO A FORECLOSURE ACTION; HERE THE FILING WAS EIGHT DAYS LATE, REQUIRING DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action was entitled to dismissal of the complaint because the plaintiff failed to timely file the information required by RPAPL 1306. The information must be filed within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304:

“Compliance with RPAPL 1306 is a condition precedent to the commencement of a foreclosure action” … . “RPAPL 1306 requires that within three business days of the mailing of the foreclosure notice pursuant to RPAPL 1304(1), each lender or assignee ‘shall file’ certain information with the superintendent of financial services” … . “[S]trict compliance” with the statutory requirement of making the appropriate filing within three business days of the mailing of the RPAPL 1304 notice is required … .

… [I]t is undisputed that the plaintiff did not make the requisite filing pursuant to RPAPL 1306 until … eight business days after the purported mailing of the RPAPL 1304 notice … . Since the plaintiff failed to strictly comply with the statutory requirement of making the appropriate filing within three business days of the mailing of the RPAPL 1304 notice, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted against him … . Bank of N.Y. Mellon v Peralta, 2025 NY Slip Op 03790, Second Dept 6-25-25

Same issue and result in Deutsche Bank Natl. Trust Co. v Goetz, 2025 NY Slip Op 03792, Second Dept 6-25-25

Practice Point: The bank’s failure to file the information required by RPAPL 1306 within three business days of the mailing of the notice of foreclosure mandates dismissal of the foreclosure action.​

 

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HERE THE ASSISTANT SUPERINTENDENT WHO WAS HANDED THE SUMMONS AND COMPLAINT IN THIS PROPERTY-DAMAGE ACTION WAS AN AUTHORIZED AGENT OF THE SCHOOL DISTRICT; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO COMPLETE PROPER SERVICE (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Voutsinas, reversing Supreme Court, determined the assistant superintendent who was handed the summons and complaint in this property-damage action against the school district was an authorized agent of the district. Therefore the complaint should not have been dismissed for failure to complete proper service:

It is evident, however, that the role of assistant superintendent was intended, under Education Law § 2(13), to be considered another appointive officer whose duties generally relate to the administration of affairs within a school district. An assistant superintendent … directly carries out duties that typically would be carried out by the superintendent. These duties fit closely with the statutory definition of “school officer” as contemplated by Education Law § 2(13).

Moreover, as set forth in the Education Law, the role of assistant superintendent is generally created directly by an elected board of education, such as the defendant’s Board of Education. Specifically, Education Law § 2503(5), applicable to the defendant herein, grants the Board of Education the ability to “create, abolish, maintain and consolidate such positions . . . as, in its judgment, may be necessary for the proper and efficient administration of its work” and “shall appoint properly qualified persons to fills such positions, including a superintendent of schools” and “such associate, assistant and other superintendents . . . as said board shall determine necessary for the efficient management of the schools.” Here, the defendant, in accordance with the relevant provisions of the Education Law, has given … the assistant superintendent for curriculum and instruction … authority and command to administer the affairs of the defendant and its superintendent as it pertains to the offering of the curriculum to the student body and the instruction of each student. It is evident that [the assistant superintendent], in this role, reports directly to the superintendent of schools and the Board of Education and is charged with administering functions that otherwise would be tasked to the Board of Education and/or the superintendent of schools. Aideyan v Mount Vernon City Sch. Dist., 2025 NY Slip Op 03787, Second Dept 6-25-25

Practice Point: Consult this decision if you need to know who is authorized to accept service on behalf of a school district.

 

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