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THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to file a late notice of claim in this traffic accident case involving a city bus should have been granted. Although the excuse for failure to time file (petitioners’ infancy) was not reasonable, that flaw was not fatal because the city had timely actual knowledge of the essential facts underlying the claim and was not prejudiced by the delay:​

Here, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim. Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality or public corporation, where the report reflects that an employee of the municipality or public corporation committed a potentially actionable wrong, such entity can be found to have actual knowledge … . In this case, the police report, which the petitioners sent to the NYCTA [NYC Transit Authority] on or about July 2, 2021, indicated that the multivehicle collision was set in motion by Robinson, who caused the bus to come into contact with the rear of another vehicle. The police report also indicated that several bus passengers reported injuries and named the injured petitioners, among others. In addition, the respondents were in possession of the injured petitioners’ medical records. Under these circumstances, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, since the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice to the respondents’ ability to maintain a defense … . Matter of Arvizu v New York City Tr. Auth., 2025 NY Slip Op 03323, Second Dept 6-4-25

Practice Point: A municipality will be deemed to have timely actual notice of a claim where, as here, the police report reflects that an employee of the municipality committed a potentially actionable wrong.​​​​​​​​​​​

 

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HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s argument in this foreclosure action should not have been considered because it was raised for the first time in reply papers. In its reply, the plaintiff argued that the foreclosure action was not time-barred because defendant revived the statute of limitations by making payments within the six years prior to the commencement of the action:

[Plaintiff] failed to establish, prima facie, that this action was not time-barred. The plaintiff’s submissions revealed that the mortgage debt was accelerated in January 2007, when the plaintiff commenced the first prior action to foreclose the mortgage … . This action was commenced in July 2018, more than six years later. The plaintiff’s contention that payments the defendant made on the loan as late as September 2013 served to renew the statute of limitations, making this action timely, is not properly before this Court, as it was raised for the first time in reply papers submitted to the Supreme Court, and there is no indication that the defendant was afforded an opportunity to submit a surreply or that this new argument responded to allegations the defendant raised for the first time in his opposition papers … . Bank of N.Y. Mellon v Cooper, 2025 NY Slip Op 03297, Second Dept 6-4-25

Practice Point: Here the Second Department noted that an argument raised for the first time in reply papers was not properly before the appellate court. There was no indication sur-reply papers were submitted or that the reply-argument was a response to an issue raised by the other party.

 

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HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY, PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the wrong accident-date in the notice of claim did not warrant dismissal of the action. The wrong date was not willful and the municipality was not prejudiced. The plaintiff alleged she was injured when the driver of the defendant NYC Transit Authority’s bus stopped short:

“‘To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'” … . General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, “the time when, the place where and the manner in which the claim arose” … . “‘[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident'” … . “Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” … .

Here, there is no indication in the record that the accident date listed in the notice of claim and the complaint was set forth in bad faith … . Rather, the plaintiff’s mistake was based upon her reliance on a police report that incorrectly listed the accident date … . Moreover, contrary to the Supreme Court’s determination, the proposed amendment to the accident date was purely technical in nature and did not substantively change the nature of the claim … .

Furthermore, the record does not reflect that the defendants will be prejudiced by the plaintiff’s delay in moving for leave to amend the notice of claim. Under the circumstances of this case, including that the plaintiff received medical assistance at the accident site, that specific details regarding the circumstances of the accident, including the accident location and bus route, were set forth in a police report and the notice of claim, and that the plaintiff’s error in listing an accident date several days prior to the actual date of the accident was minimal, the defendants could have ascertained the date of the accident “with a modicum of effort” … . Hernandez v City of New York, 2025 NY Slip Op 03312, Second Dept 5-4-25

Practice Point: Here the wrong accident-date was included in the notice of claim and the plaintiff moved to amend the notice. Because the wrong date was not used in bad faith (the date was taken from the police report) and because the city was not prejudiced by the error, plaintiff’s motion to amend the notice of claim should have been granted.

 

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RPAPL 1304 REQUIRES THAT THE NOTICE OF FORECLOSURE BE MAILED SEPARATELY TO EACH BORROWER; HERE THE NOTICE WAS SENT TO BOTH BORROWERS IN A SINGLE ENVELOPE; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not prove its “strict compliance” with the notice of foreclosure provisions of RPAPL 1304:

RPAPL 1304 requires that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer give notice to the borrower. The statute prescribes the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower … . “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … , “and the plaintiff has the burden of establishing satisfaction of this condition” … . “[T]he mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and . . . the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … .

Here, in support of its motion, among other things, for summary judgment on the complaint insofar as asserted against Esther, Wilmington failed to establish strict compliance with RPAPL 1304. Although the RPAPL 1304 notice was mailed to the borrowers by both certified and first-class mail, Wilmington failed to establish that Wells Fargo sent a 90-day notice individually addressed to each borrower in a separate envelope, as required by the statute … . Instead, as 1900 Capital concedes, the RPAPL 1304 notice was not mailed individually, in a separate envelope, to Esther. Rather, the envelope purportedly providing the RPAPL 1304 notice to Esther was jointly addressed to her and Marvin in one envelope. This was insufficient to establish compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Welz, 2025 NY Slip Op 03355, Second Dept 6-4-25

Practice Point: The “notice of foreclosure” provisions in RPAPL 1304 must be strictly complied with. Here the bank mailed the notice to both borrowers in a single envelope. The statute requires separate mailings to each borrower. Therefore the bank was not entitled to summary judgment.

 

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THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with Kings County Supreme Court Uniform Civil Term Rule 8, which requires the bank to file a motion for judgment of foreclosure withing one year of entry of the order of reference, warranted dismissal of the action:

“Rule 8 requires a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure within one year of entry of the order of reference” … . “Where the plaintiff offers an excuse for its failure to comply with Rule 8, ‘[t]he determination of whether [the] excuse is reasonable is committed to the sound discretion of the motion court'” … . “Reversal is warranted ‘if that discretion is improvidently exercised'” … .

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for failure to comply with Rule 8. The order of reference was entered on August 28, 2012, * * * [and] the plaintiff failed to provide a reasonable excuse as to why [the bank] did not move for a judgment of foreclosure and sale prior to August 28, 2013. Contrary to the court’s determination, the failure to comply with Rule 8 is a sufficient ground upon which to dismiss a foreclosure action … . Wells Fargo Bank N.A. v Kahan, 2025 NY Slip Op 03354, Second Dept 6-4-25

Practice Point: Here the bank’s failure to comply with a Kings County Supreme Court Uniform Civil Term Rule warranted dismissal of the foreclosure action.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION RELIED ON BUSINESS RECORDS DESCRIBED IN AN AFFIDAVIT SUBMITTED BY PLAINTIFF; BUT THE AFFIANT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THOSE RECORDS IN EVIDENCE; JUDGMENT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was not supported by the record. The affidavit submitted by the plaintiff did not provide a foundation for the admissibility of the business records relied upon by the referee:

“[A]s a general rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” … . “However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, 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” … .  …

[The affiant] failed to aver to familiarity with the record-keeping practices and procedures of the entities that generated the records or establish that the records provided by the maker were incorporated into the plaintiff’s own records and routinely relied upon by the plaintiff in its own business … . Since the plaintiff did not lay the proper foundation for the admission of the records into evidence, those records do not constitute admissible evidence … . PS Funding, Inc. v 1641 Park Place, LLC, 2025 NY Slip Op 03349, Second Dept 6-4-25

Practice Point: In a foreclosure action, an affidavit which describes business records relied on by the referee must lay a proper foundation for the admission of those records. The absence of a proper foundation renders the referee’s report unsupported by the record.​

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against defendant school for negligent and intentional infliction of emotional distress, and the demand for punitive damages, should have been dismissed. This Child Victims Act case alleged plaintiff-student was sexually abused by a janitor:

… Supreme Court should have directed dismissal of the cause of action alleging negligent infliction of emotional distress insofar as asserted against each of the school defendants, as it is duplicative of the remaining negligence causes of action … . A cause of action is properly dismissed as duplicative when it is “based on the same facts and seek[s] essentially identical damages” … .

Furthermore, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . “The subject conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress … . Here, even accepting the conclusory allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff failed to allege conduct by the school defendants that was “so outrageous in character, and so extreme in degree,” as to qualify as intentional infliction of emotional distress … . Accordingly, the Supreme Court should have directed dismissal of the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against each of the school defendants pursuant to CPLR 3211(a)(7).

… Supreme Court should have directed dismissal of the demand for punitive damages insofar as asserted against each of the school defendants. “[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives” … . Here, the plaintiff’s allegations against the school defendants amount to “nothing more than allegations of mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages” … . Redd v Brooklyn Friends Sch., 2025 NY Slip Op 03214, Second Dept 5-28-25

Practice Point: Consult this decision for the criteria for sufficiently alleging negligent and intentional infliction of emotional distress causes of action, as well as the criteria for a demand for punitive damages against a school in a Child Victims Act case​.

 

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IN THIS TRAFFIC-ACCIDENT CASE, PLAINTIFF BROUGHT THE ACTION IN AN IMPROPER VENUE; DEFENDANTS’ MOTION TO CHANGE VENUE WAS SIX DAYS LATE; SUPREME COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue in this traffic-accident case should have been granted. Plaintiff had brought the action in an improper venue. Although the defendants’ motion to change venue was six days late, Supreme Court had the discretion to grant it:

CPLR 510 sets forth grounds on which a motion to change venue may be made. When a defendant moves to change venue on the ground that the venue selected by the plaintiff is not proper … , the defendant must serve a timely demand on the plaintiff prior to making the motion … . When a motion to change venue on this ground is untimely, the motion is addressed to the court’s discretion rather than based on right … . Here, the defendants acknowledge that, after serving a demand to change venue with their answer, they moved to change the venue of the action six days late. Thus, their motion “became one addressed to the court’s discretion” … .

Under the circumstances present here, the Supreme Court improvidently exercised its discretion in denying the defendants’ motion pursuant to CPLR 510 to change the venue of the action from Kings County to Suffolk County. Venue is proper “in the county in which one of the parties resided when [the action] was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred ” … . Here, there is no dispute that none of the parties resided in Kings County and that the accident did not occur in Kings County. By selecting an improper venue in the first instance, the plaintiff forfeited the right to choose venue … . Further, the plaintiff failed to show that the county specified by the defendants was improper and did not cross-move to retain venue in Kings County or to transfer venue to a county other than that urged by the defendants … . Moreover, although the defendants’ motion was untimely, they promptly moved to change the venue of the action after confirming the true location of the accident … . Pujals v Haitidis, 2025 NY Slip Op 03213, Second Dept 5-28-25

Practice Point: Plaintiff brought the action in an improper venue. Defendants’ motion to change venue was six days late. Under the facts, Supreme Court improvidently exercised its discretion when it denied defendants’ motion.

 

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MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES, DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined an exception to the mootness doctrine applied (to allow the appeal to be heard) and the mandamus-to-compel proceeding should have been denied on the merits. Petitioner mother sought to compel the support magistrate to hold a hearing on father’s alleged support-order violation within the time allowed by the Uniform Rules for Family Court. The Appellate Division held that, although the relevant rule setting a deadline for a hearing used mandatory language, a judge has the discretion the adjourn matters beyond a deadline set in the Uniform Rules:

… [W]e conclude that the exception to the mootness doctrine applies. The petitioner has demonstrated that the issue is “capable of repetition” in other cases … . It also involves a phenomenon that will typically evade appellate review, since a Family Court can render any challenge to an alleged failure to adhere to the provisions of the rule academic by advancing a hearing date or completing a hearing in its entirety … , as occurred in this case … . Further, the argument raised by the petitioner presents “a substantial and novel issue of statewide importance regarding the rights of [custodial] parents” to resolve child support disputes in a timely manner … . * * *

… [W]e conclude that a writ of mandamus is not available to compel judicial officers to comply with the deadlines set forth in 22 NYCRR 205.43(b) and (e). As our colleagues in the First Department recognized, “[t]he timely completion of [child support] hearings depends on discretionary determinations made by individual Family Court judges and support magistrates as to whether good cause exists for adjournments” … . Indeed, the decision of a Family Court judge or support magistrate to grant an adjournment in a support proceeding is discretionary in nature (see Family Ct Act § 435 …). This Court, for example, has reversed orders in circumstances where a court’s denial of an adjournment request constituted an abuse or improvident exercise of discretion … . Further, the rule expressly states that judges and support magistrates may grant adjournments for various reasons, including to permit a party to secure counsel, in circumstances where a party’s counsel establishes actual engagement, due to the illness of a party, or for other good cause shown … . Therefore, “[a]lthough the 90-day limit” of 22 NYCRR 205.43(b) “is written in mandatory terms,” as is the 7-day limit of 22 NYCRR 205.43(e), these provisions do “not impose . . . nondiscretionary ministerial dut[ies]” upon judges or support magistrates that may be subject to mandamus … . In reaching this determination, we express no opinion as to whether a judicial officer’s alleged failure to adhere to the relevant provisions of 22 NYCRR 205.43 may be successfully challenged under provisions of CPLR article 78 that are not at issue here … . Matter of Santman v Satterthwaite, 2025 NY Slip Op 03196, Second Dept 5-28-25

Practice Point: Consult this decision for an explanation for when a moot issue can be heard on appeal.

Practice Point: Although the Uniform Rules for Family Court use mandatory language in setting a deadline for holding a hearing on an alleged violation of a support order, the support magistrate had the discretion to adjourn the hearing beyond the deadline set in the Rules.

 

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