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PLAINTIFF INJURED WHEN CHAIR IN CUSTODIAN’S BREAK ROOM COLLAPSED, SCHOOL DEMONSTRATED IT DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION AND RES IPSA LOQUITUR DID NOT APPLY BECAUSE THE CHAIR WAS DEEMED NOT TO BE IN THE EXCLUSIVE CONTROL OF THE SCHOOL DISTRICT (SECOND DEPT).

The Second Department determined the school district was not liable for injuries to a subcontractor working at a school. A chair in the custodian's break room collapsed when plaintiff was sitting in it. The school demonstrated a lack of notice of the dangerous condition and the res ipsa loquitur doctrine did not apply because the school was deemed not to have exclusive control over the chair:

The School District established its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that it did not have actual or constructive notice of any defect in the chair … . Since the plaintiff presented only unsubstantiated hearsay in opposition to the School District's motion, he failed to raise a triable issue of fact … .

Moreover, contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is inapplicable, because one of the required factors for the doctrine to apply—that the instrumentality of the injury was in the exclusive control of the School District— cannot be established. The chair was located in the custodian break room accessible to third-party contractors of the School District, giving numerous people access to it … . Brennan v Wappingers Cent. Sch. Dist., 2018 NY Slip Op 05745, Second Dept 8-15-18

NEGLIGENCE (PLAINTIFF INJURED WHEN CHAIR IN CUSTODIAN'S BREAK ROOM COLLAPSED, SCHOOL DEMONSTRATED IT DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION AND RES IPSA LOQUITUR DID NOT APPLY BECAUSE THE CHAIR WAS DEEMED NOT TO BE IN THE EXCLUSIVE CONTROL OF THE SCHOOL DISTRICT (SECOND DEPT))/RES IPSA LOQUITUR (PLAINTIFF INJURED WHEN CHAIR IN CUSTODIAN'S BREAK ROOM COLLAPSED, SCHOOL DEMONSTRATED IT DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION AND RES IPSA LOQUITUR DID NOT APPLY BECAUSE THE CHAIR WAS DEEMED NOT TO BE IN THE EXCLUSIVE CONTROL OF THE SCHOOL DISTRICT (SECOND DEPT))

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PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the legal malpractice action should have been dismissed because plaintiff could not have prevailed in the underlying slip and fall case. The slip and fall case was dismissed because the proper party was not served. The Second Department held that the plaintiff could not have proved liability for the slip and fall case because of the storm in progress rule:

[The] submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress… . Since the defendants made a prima facie showing that the storm in progress rule applied to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident … . The plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner … . Blair v Loduca, 2018 NY Slip Op 05744, Second Dept 6-15-18

ATTORNEYS (MALPRACTICE, PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LEGAL MALPRACTICE (PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENCE (PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/SLIP AND FALL (PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/STORM IN PROGRESS (PLAINTIFF COULD NOT HAVE PREVAILED IN THE UNDERLYING SLIP AND FALL CASE BECAUSE OF THE STORM IN PROGRESS RULE, LEGAL MALPRACTICE ACTION BASED UPON A FAILURE TO SERVE THE CORRECT PARTY SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE CONTEXT DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the causes of action alleging legal malpractice, breach of contract, and fraud were properly dismissed. The court further found that the cause of action alleging a violation of Judiciary Law 487 should have been dismissed as well, noting that allegations of negligence do not meet the “intent to deceive” element of a Judiciary Law action:

Contrary to the defendants' contention, the cause of action alleging a violation of Judiciary Law § 487 was not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” … .

Nevertheless, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law § 487 … . Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “intent to deceive the court or any party” … . Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016[b]… ). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law § 487 to recover the legal fees incurred. Bill Birds, Inc. v Stein Law Firm, P.C., 2018 NY Slip Op 05743, Second Dept 8-15-18

ATTORNEYS (ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/LEGAL MALPRACTICE  (ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (JUDICIARY LAW 487, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 3016 (JUDICIARY LAW 487, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/JUDICIARY LAW 487 (ATTORNEYS, CIVIL PROCEDURE, ALLEGATIONS OF NEGLIGENCE IN A LEGAL MALPRACTICE ACTION DO NOT SUPPORT A CAUSE OF ACTION ALLEGING A JUDICIARY LAW 487 VIOLATION, INTENT TO DECEIVE MUST BE ALLEGED WITH PARTICULARITY, JUDICIARY LAW CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

ASSIGNMENT OF AN INTEREST IN A JUDGMENT WAS VALID EVEN THOUGH THE PARTY WHO PAID THE ASSIGNOR HAD NOT BEEN NOTIFIED OF THE ASSIGNMENT, PAYMENT MADE IN GOOD FAITH TO THE ASSIGNOR TREATED AS IF MADE TO THE ASSIGNEE (SECOND DEPT).

The Second Department, reversing Supreme Court, held that a payment made in good faith to a party (Bynum) who had already assigned his interest in a judgment should be treated as if payment had been made to the right party (the assignee), and the assignment was valid, even though the party who made the payment (Scheiner) was not notified of it:

“An obligor is entitled to a credit for payments mistakenly made to the assignor rather than to the assignee when those payments are made in good faith and in ignorance of the assignment” … . Here, the plaintiffs conceded that Scheiner was entitled to a credit for the $12,000 payment he made to Bynum, and in determining the plaintiffs' motion and upon vacating the satisfaction of judgment, the Supreme Court recalculated the amount of the judgment to reflect that offset. Contrary to the court's determination, the failure to notify Scheiner of the assignment did not render the assignment ineffective … . 1051 Corp v Bynum, 2018 NY Slip Op 05740, Second Dept 8-15-18

DEBTOR-CREDITOR (ASSIGNMENT OF AN INTEREST IN A JUDGMENT WAS VALID EVEN THOUGH THE PARTY WHO PAID THE ASSIGNOR HAD NOT BEEN NOTIFIED OF THE ASSIGNMENT, PAYMENT MADE IN GOOD FAITH TO THE ASSIGNOR TREATED AS IF MADE TO THE ASSIGNEE (SECOND DEPT))/JUDGMENTS (ASSIGNMENT OF AN INTEREST IN A JUDGMENT WAS VALID EVEN THOUGH THE PARTY WHO PAID THE ASSIGNOR HAD NOT BEEN NOTIFIED OF THE ASSIGNMENT, PAYMENT MADE IN GOOD FAITH TO THE ASSIGNOR TREATED AS IF MADE TO THE ASSIGNEE (SECOND DEPT))

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POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER’S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT

The Second Department determined the petition to file a late notice of claim in this false arrest, false imprisonment and malicious prosecution action was properly denied. The police report association with petitioner's arrest did not provide notice of the claims to the city and that allegation that petitioner's assigned counsel did not timely inform him of the notice of claim requirement was not an adequate excuse:

… [T]he involvement of a City police officer in arresting the petitioner did not, without more, establish that the City acquired actual knowledge of the essential facts constituting the petitioner's claims of false arrest, false imprisonment, and malicious prosecution within 90 days following their accrual or a reasonable time thereafter… . In addition, the contents of the arrest report and the certificate of disposition, submitted by the petitioner in support of his application, were insufficient to impute actual knowledge to the City of the facts underlying his claims … . Further, the petitioner failed to establish that the delay in serving a notice of claim and seeking leave to serve such notice would not substantially prejudice the City in maintaining its defense on the merits with respect to those claims … . Matter of Islam v City of New York, 2018 NY Slip Op 05763, Second Dept 8-15-18

MUNICIPAL LAW (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/FALSE ARREST (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/FALSE IMPRISONMENT  (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MALICIOUS PROSECUTION (POLICE REPORT DID NOT NOTIFY CITY OF THE NATURE OF PETITIONER'S FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CLAIMS, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this student bullying and harassment case was properly granted. The plaintiff alleged the school was negligent in failing to prevent or stop the bullying:

… [T]he infant petitioner submitted evidence showing that she made persistent complaints over a period of years to district employees that she had been verbally and physically harassed by a certain group of fellow students, and that the abuse continued despite the school district's intermittent corrective actions. Contrary to the school district's contentions, the infant petitioner demonstrated that the district had actual notice of more than just the discrete incidents to which it responded; it had notice of the alleged pattern of abuse. Under the circumstances presented here, the infant petitioner sufficiently demonstrated that the district had actual notice of the essential facts constituting the claim within 90 days of accrual or within a reasonable time thereafter … , and that the district was not substantially prejudiced by the delay in serving the notice of claim … . …

The school district's contention that it would be prejudiced by the delay because two of the petitioner's three prior guidance counselors no longer work at the school was not sufficient to meet its burden of making a “particularized showing” of prejudice in maintaining a defense on the merits… .. Given the petitioner's infancy, the school district's actual notice, and the absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim … . Matter of C.B. v Carmel Cent. Sch. Dist., 2018 NY Slip Op 05761, Second Dept 8-15-18

EDUCATION-SCHOOL LAW (LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/BULLYING (EDUCATION-SCHOOL LAW, NEGLIGENCE, LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS STUDENT BULLYING AND HARASSMENT ACTION WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))

OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs' serving a faulty copy of an order to show cause which did not include the return date should not have been deemed a jurisdictional defect. The defendants appeared on the return date, so there was no prejudice:

Unbeknownst to the plaintiffs, the Kings County Clerk's Office encountered some type of error when scanning and uploading the signed order to show cause to the eCourts system. The digital copy of the order to show cause omitted the page containing the return date of February 27, 2015, among other things, although the remaining pages feature the handwritten notation “2/27/15.” The plaintiffs printed the faulty digital copy without noticing the error and served that copy on the defendants with supporting papers, using the method specified in the order to show cause. * * *

“The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion” … . However, the defect in service here was “merely technical”… . Under these circumstances, given that no substantial right of the defendants was prejudiced, the Supreme Court should have disregarded the irregularity and determined the motion on the merits (see CPLR 2001 … ). Young v City of New York, 2018 NY Slip Op 05793, Second Dept 8-15-18

CIVIL PROCEDURE (OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/RETURN DATE (ORDER TO SHOW CAUSE, OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/ORDER TO SHOW CAUSE (RETURN DATE, OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))/CPLR 2001  (OMISSION OF RETURN DATE FROM AN ORDER TO SHOW CAUSE, WHICH DID NOT RESULT IN PREJUDICE, SHOULD HAVE BEEN DISREGARDED AS A TECHNICAL DEFECT (SECOND DEPT))

FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT).

The Second Department noted that plaintiff's failure to attach the pleadings to plaintiff's motion for summary judgment was not a fatal defect:

The defendants' contention that the plaintiff's failure to annex the pleadings to its motion papers was a fatal defect is without merit. CPLR 3212(b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . Here, the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion, and the summons and complaint were submitted in reply by the plaintiff. The defendants did not assert that they were prejudiced by the omission. Under such circumstances, the court properly disregarded the plaintiff's omission … . Sensible Choice Contr., LLC v Rodgers, 2018 NY Slip Op 05790, Second Dept 8-15-18

CIVIL PROCEDURE (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 3212 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 2001 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))/CPLR 3212 (FAILURE TO ATTACH PLEADINGS TO A MOTION FOR SUMMARY JUDGMENT PROPERLY DISREGARDED BY THE MOTION COURT (SECOND DEPT))

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BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS, AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined plaintiff’s motion for summary judgment in this action to cancel and discharge a note and mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 was properly denied, but defendant’ motion to dismiss the complaint pursuant to CPLR 3211 should not have been granted. Plaintiff argued the debt had been accelerated and the statute of limitations for foreclosure had passed, defendant argued it had de-accelerated the debt and the statute had not run.  The court, disagreeing with the 1st Department, noted that the language in a letter to the effect that the failure to cure the delinquency within 30 days “will result in acceleration” of the note does not constitute sufficient notice of the acceleration such that the statute of limitations starts to run. In addition, the court held, as a matter of first impression, standing to bring the foreclosure action is a pre-requisite both for a valid acceleration and a valid de-acceleration of the note:

Courts must … be mindful of the circumstance where a bank may issue a de-acceleration letter as a pretext to avoid the onerous effect of an approaching statute of limitations and to defeat the property owner’s right pursuant to RPAPL 1501 to cancel and discharge a mortgage and note. Here, however, the de-acceleration letter containing a clear and unequivocal demand that the homeowner meet her prospective monthly payment obligations constitutes a de-acceleration in fact and cannot be viewed as pretextual in any way.  …

We hold for the first time in the Appellate Division, Second Department, that just as standing, when raised, is a necessary element to a valid acceleration, it is a necessary element, when raised, to a valid de-acceleration as well.

Here, the de-acceleration notice … does not establish that [defendant] had standing to de-accelerate the earlier demand that the plaintiff’s mortgage debt be paid in its entirety, and no other evidence submitted … demonstrates that it had standing.  Milone v US Bank Natl. Assn., 2018 NY Slip Op 05760, Second Dept 8-15-18

FORECLOSURE (BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))

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HUSBAND’S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY’S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) husband's counsel should not have been disqualified on the ground she would be a witness, (2) the plenary action seeking to set aside the prenuptial agreement on grounds of duress, coercion, undue influence and unconscionabiltiy is properly joined with the divorce action, (3) and interim attorney's fees are not available for the action to set aside the prenuptial agreement:

Rule 3.7 of the Rules of Professional Conduct… provides that, unless certain exceptions apply, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact” … . In order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party… . Here, the wife failed to demonstrate that [the attorney's] testimony will be necessary to her case … . …

“The trial court has broad discretion in determining whether to order consolidation”(… see CPLR 602[a]). The interests of justice and judicial economy are better served by consolidation or a joint trial in those cases where the actions share material questions of law or fact … . A motion to consolidate or join for trial should be granted absent a showing of prejudice to a substantial right by a party opposing the motion … . …

The Supreme Court should not have awarded the wife interim counsel fees in the sum of $10,000 pursuant to Domestic Relations Law § 237, as that statute does not permit the recovery of fees for legal work performed on nonmatrimonial matters, including where, as here, a party seeks an award of counsel fees incurred in an action to set aside a prenuptial agreement … . Lombardi v Lombardi, 2018 NY Slip Op 05758, Second Dept 8-15-18

FAMILY LAW (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/ATTORNEYS (FAMILY LAW, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CIVIL PROCEDURE (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CPLR 602  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CONTRACT LAW (PRENUPTIAL AGREEMENT, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/PRENUPTIAL AGREEMENT  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))

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