Tag Archive for: Second Department

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THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE VILLAGE’S SEQRA NEGATIVE DECLARATION WHICH ALLOWED THE CONSTRUCTION OF 98 APARTMENTS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioners did not have standing to challenge the negative declaration issued by the village respondents pursuant to the State Environmental Quality Review Act (SEQRA). The village thereby approved the construction 98 apartment units. The Second Department explained the criteria for standing in this context:

“Standing to bring a SEQRA challenge is a threshold issue, and the burden of establishing standing is on the party seeking review of governmental action on the basis of alleged procedural and substantive SEQRA violations” … . “To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . “Economic injury is not by itself within the zone of interests which SEQRA seeks to protect” … .

Here, the petitioners alleged environmental injuries that either were economic in nature … , were not different from those that would be suffered by the public at large … , or were too speculative and conjectural to demonstrate an actual injury-in-fact … . Such allegations are insufficient to confer standing to challenge the adequacy of the Cedarhurst respondents’ environmental review of the overlay district under SEQRA. Contrary to the petitioners’ contention, their property was not sufficiently close in proximity to the proposed development so as to confer a presumption of an injury-in-fact as an adjacent property owner … . Board of Educ. of the Lawrence Union Free Sch. Dist. v Incorporated Vil. of Cedarhurst, 2026 NY Slip Op 05154, Second Dept 9-2-26

Practice Point: Consult this decision for insight into the criteria for standing to challenge a municipality’s SEQRA negative declaration. Here the village approved the construction of 98 apartments and the petitioners did not have standing to challenge the approval.

 

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WHETHER A CONDITION IS “OPEN AND OBVIOUS” IS USUALLY A JURY QUESTION; IN THIS SLIP AND FALL CASE, PLAINTIFF TRIPPED AND FELL OVER THE FORK PART OF A FORKLIFT PARKED IN AN AISLE OF A HOME DEPOT STORE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that whether a condition is “open and obvious” is usually a question of fact for the jury:

“A landowner has a duty to maintain its premises in a reasonably safe condition” … . “However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous … . “Some hazards, although discernable, may be hazardous because of their nature and location” … . In particular, the plaintiff’s deposition testimony raised a triable issue of fact as to whether the forklift’s location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition … . The plaintiff testified, inter alia, that he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way. Simon v Plainview Ave. Assoc., 2026 NY Slip Op 05205, Second Dept 9-2-26

Practice Point: Here plaintiff tripped over the fork part of a forklift parked in an aisle of a Home Depot store. The complaint should not have been dismissed. Whether the condition was open and obvious and not inherently dangerous was a question of fact.

 

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THE JURY VERDICT IN THIS REAR-END COLLISION TRIAL WAS IRREVOCABLY INCONSISTENT AND SHOULD HAVE BEEN SET ASIDE; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the jury verdict in this rear-end collision case was “irrevocably inconsistent” and must be set aside. The only nonnegligent explanation offered by the defendant was that he suffered a medical emergency just before the collision. On the verdict form the jury answered “no” to the question whether defendant suffered a medical emergency. But the jury also answered “no” to the question whether defendant was negligent in the operation the vehicle:

Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. “Where, as here, the jury verdict ‘is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'” … . Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law … “‘there is no preservation requirement for weight of the evidence review'” … .

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer “No” when asked whether the decedent “experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident … , and was his operation of the vehicle reasonable under the circumstances,” while also responding “No” when asked whether the decedent was “negligent in the operation of the vehicle.” Accordingly, there must be a new trial on the issue of liability. Pitt v Rosenblatt, 2026 NY Slip Op 05200, Second Dept 9-2-26

​Practice Point: Here the “irrevocably inconsistent” jury verdict was against the weight of the evidence and should have been set aside. The issue need not be preserved for appeal.

 

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HERE IN THIS FORECLOSURE ACTION, PLAINTIFF FILED A REQUEST FOR JUDICIAL INTERVENTION SEEKING A SETTLEMENT CONFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THEREFORE PLAINTIFF NEED NOT PROVIDE A REASONABLE EXCUSE FOR THE DELAY OR DEMONSTRATE A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR ABANDONMENT PURSUANT TO CPLR 3215(C); ANY FURTHER DELAYS AFTER THE REQUEST FOR JUDICIAL INTERVENTION ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint in this foreclosure action, determined plaintiff did not abandon the action because it filed a request for judicial intervention seeking a settlement conference within one year of defendant’s default:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” “To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. Rather, as long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . The filing of a request for judicial intervention that seeks a residential mortgage foreclosure settlement conference as mandated by CPLR 3408 constitutes the taking of proceedings under CPLR 3215(c) … . * * *

Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after [the] default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action … . Furthermore, “once the plaintiff established that it had initiated proceedings for the entry of a judgment within one year after the defendants’ default, it was in compliance with CPLR 3215(c) and it was not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” … . Aurora Loan Servs., LLC v Miller, 2026 NY Slip Op 05153, Second Dept 9-2-26

Practice Point: If, in a foreclosure action, plaintiff files a request for judicial intervention and a settlement conference within one year of defendant’s default, plaintiff need not provide an excuse for the delay or demonstrate a meritorious cause of action to avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c). Once proceedings have been taken within one year of default, any further delays after the taking of proceedings are irrelevant to any claim of abandonment.

 

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PURUSANT TO CPL 420.25, SUPREME COURT PROPERLY DECLARED A DEED WHICH WAS THE SUBJECT OF AN OFFERING-A-FALSE-INSTRUMENT-FOR-FILING CONVICTION VOID AB INITIO; THE ARGUMENT THE PEOPLE MUST PROVE THE SIGNATURES ON THE DEED ARE FORGED WAS REJECTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Quirk, determined the Criminal Procedure Law allows the court to declare a deed void ab initio where a deed is the subject of a offering-a-false-instrument-for-filing conviction. The argument the People were required to prove the signatures on the deed were forged was rejected:

This appeal presents issues with respect to CPL 420.45, a statute enacted in 2019 that permits a court, upon motion and after a hearing, to order that an instrument affecting real property be declared void ab initio when, as relevant here, a defendant has been convicted of offering a false instrument for filing in the first degree and the instrument is material to the encumbrance, transfer, or purchase of real property. Nonparty Bil-Man Asset Management, LLC (hereinafter the appellant), contends that CPL 420.45 applies only to deeds containing forged signatures and that the People failed to establish that the deed at issue here was forged. The appellant further contends that it rebutted the presumption under CPL 420.45 that the deed at issue was void ab initio. … Supreme Court properly granted the People’s motion, in effect, pursuant to CPL 420.45 to declare the deed void ab initio. * * *

Each guilty plea arose out of a scheme by the defendant and the codefendant to defraud the defendant’s mother, Marta Merino, out of certain real property that she owned in Brooklyn (hereinafter the property). Specifically, the defendant admitted … she recorded a deed (hereinafter the fraudulent deed) with the Office of the City Register of New York that purported to transfer title to the property from her mother to herself. She also admitted … she recorded a second deed, transferring title to the property from herself to 523 73rd Street, LLC, of which she was a member, and that there was never any agreement between the defendant and her mother that the defendant would hold title to the property. The defendant and the codefendant admitted that they stole loan proceeds from the appellant by means of a fraudulent mortgage on the property. * * *

… [T]he plain language of CPL 420.45 does not limit its application to deeds containing forged signatures. People v Merino, 2026 NY Slip Op 05196, Second Dept 9-2-26

Practice Point: Consult this opinion for an in-depth discussion of when a real-property-related instrument which is the subject of an offering-a-false-instrument-for-filing conviction can be declared void ab initio by the court. The People need not prove the signatures on the instrument are forged.

 

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PURSUANT TO CPL 30.30(2)(A), THE 90-DAY SPEEDY TRIAL CLOCK DOES NOT COUNT DAYS WHEN DEFENDANT IS NOT IN CUSTODY; HERE DEFENDANT WAS INITIALLY INCARCERATED, RELASED ON BAIL, AND THEN INCARCERATED AGAIN; THE DAYS DURING WHICH DEFENDANT WAS OUT ON BAIL ARE NOT PART OF THE 90-DAY CALCULATION (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined the 90-day clock for a speedy trial violation pursuant to CPL 30.30(2)(a) includes only the days during which defendant was incarcerated. Here defendant was initially incarcerated, then released on bail when his girlfriend posted bail, and then incarcerated again when his girlfriend withdrew as the surety. Defendant’s total number of incarcerated days before the People were ready for trial was 80 days:

Counsel for the defendant contended, among other things, that the 31 days between September 9, 2024, and October 11, 2024, when the defendant was no longer in custody as he had posted bail did not qualify under CPL 30.30(3) or (4) as an exception to the 90-day readiness requirement and that, therefore, 117 days were chargeable to the People for the purposes of CPL 30.30(2)(a). According to counsel, since the People were not ready for trial within 90 days after the defendant was first in custody, the defendant was entitled to be released under CPL 30.30(2)(a). Counsel argued that there was no statutory basis for two different CPL 30.30 clocks or for resetting the clock to exclude the 31 days when he was out on bail.

In opposition, the People contended that the 31 days when the defendant was out on bail should be excluded from the calculation of time under CPL 30.30(2)(a). They contended, in sum and substance, that, upon the defendant’s return to custody in this case, the 90-day time clock under CPL 30.30(2)(a) for the People to be ready for trial reset and began again. The People argued, in the alternative, that the 31 days that the defendant was out on bail should be excluded from the 90-day calculation of readiness under CPL 30.30(2)(a). Thus, they contended that the time chargeable to the People was 80 days, plus 4 days that the Supreme Court charged to the People with respect to a challenge the defendant had made to the validity of the People’s COC, but that, since only 84 days were chargeable under CPL 30.30(2)(a), the People had declared their readiness for trial within the statute’s permissible time frame. * * *

Supreme Court correctly determined that the defendant was not unlawfully detained in violation of CPL 30.30(2)(a). Under the appropriate calculation, here, 20 days was chargeable to the People before the defendant was released on bail from his original custody. Thereafter, an additional 60 days were chargeable to the People for the time period preceding the People’s filing of the COC and the SOR, during which the defendant was again incarcerated. Thus, for the purposes of CPL 30.30(2)(a), 80 days were chargeable to the People under CPL 30.30(2). People ex rel. Liles v Richards, 2026 NY Slip Op 05191, Second Dept 9-2-26

Practice Point: Pursuant to CPL 30.30(a)(2), the 90-day speedy trial clock does not include days when defendant is not in custody. Here defendant was initially incarcerated, released on bail, then incarcerated again. Because the days when defendant was out on bail are not part of the calculation, the speedy trial statute was not violated.

 

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PETITIONERS DID NOT LEARN OF THE BABY’S MEDICAL CONDITION UNTIL SIX MONTHS AFTER THE INDUCED LABOR; PETITIONERS REQUESTED LEAVE TO FILE A LATE NOTICE OF CLAIM FOR MEDICAL MALPRACTICE; ALTHOUGH THE HOSPITAL DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENCE OF THE CLAIM, THE HOSPITAL DID NOT DEMONSTRATE ANY PREJUDICE FROM THE DELAY BECAUSE THE MEDICAL ISSUES WERE FULLY DOCUMENTED; THE REQUEST TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ request for leave to file a late notice of claim in this medical malpractice action should have been granted. Petitioner mother did not learn of her child’s medical condition until six months after her discharge from the hospital after labor was induced. Mother therefore had a reasonable excuse for failure to timely file a notice of claim. Although the hospital did not have timely knowledge of the nature of the claim, the hospital did not demonstrate any prejudice from the delay because the relevant issues were fully documented:

… [T]he court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” … . Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service … , which was the case here. “‘[T]he presence or absence of any one factor is not determinative'” … .

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed … . The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital’s records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice … . However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice” … . Matter of Caceres v NYC Health & Hosps., 2026 NY Slip Op 05182, Second Dept 9-2-26

Practice Point: Here the request to file a late notice of claim was granted despite the fact that the hospital did not have timely notice of the essence of the medical malpractice claim. Petitioners had a reasonable excuse for the delay and the hospital did not demonstrate any prejudice caused by the delay.

 

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SERVICE OF A VALID RPAPL 1304 NOTICE IS A CONDITION PRECEDENT TO A FORECLOSURE ACTION; HERE THE AMOUNT OWED INDICATED IN THE RPAPL 1304 NOTICES DIFFERED FROM THE AMOUNT OWED INDICATED IN THE COMPLAINT, RAISING A QUESTION OF FACT WHETHER THE RPAPL 1304 NOTICE WAS INCORRECT AND THEREFORE INVALID (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined there were questions of fact about whether the RPAPL 1304 notices were defective on their faces. The amount owed indicated in the RPAPL 1304 notices differed from the amount owed described in the complaint. Service of a valid RPAPL 1304 notice is a condition precedent to a foreclosure action. There must be strict compliance with the RPAPL 1304 content requirements:

… [P]laintiff failed to tender sufficient evidence demonstrating the absence of triable issues of fact as to its strict compliance with the content requirements of RPAPL 1304. RPAPL 1304(1) requires that the 90-day notice state: “As of ___, your home loan is ___ days and ___ dollars in default.” The instant RPAPL 1304 notices stated: “As of 07/05/2023, your home loan is 4954 days and $735,151.56 dollars in default.” In contrast, the complaint stated that “there is now due and owing to the Plaintiff under said Note and Mortgage the principal sum of $440,882.36, with interest thereon from September 1, 2009.” Although the complaint noted that the plaintiff “only seeks to collect those installments which are within 6 years past due as of the date of commencement,” the complaint clarified in a footnote that the amount of $440,882.36 “reflects the unpaid principal balance as of the default date and interest paid through date.” At least one of these documents, then, contained an error concerning the amount due on the note—information that was required under RPAPL 1304. Residential Mtge. Loan Trust 2013-TT2 v Elshiekh. 2026 NY Slip Op 05124, Second Dept 8-26-26

Practice Point: If the amount owed indicated in the RPAPL 1304 notice is incorrect, the notice is invalid and this condition precedent for a foreclosure action has not been fulfilled.

 

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DEFENDANTS DID NOT SUBMIT AN AFFIRMATION DEMONSTRATING A GOOD FAITH EFFORT TO RESOLVE THE DISCOVERY ISSUES; DEFENDANTS, IN THEIR MOTION TO PRECLUDE THE PLAINTIFF FROM PRESENTING EVIDENCE AS A DISCOVERY SANCTION, DID NOT DEMONSTRATE PLAINTIFF’S FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY WAS “WILLFUL AND CONTUMACIOUS;” DEFENDANTS’ MOTION TO PRECLUDE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion to preclude plaintiff from offering evidence or responding to a dispositive motion as a discovery sanction should not have been granted for two reasons: (1) the defendants did not submit an affirmation demonstrating a good faith effort to resolve the discovery issues (22 MYCRR 202.t(a)); and (2), the defendants failed to demonstrate plaintiff’s failure to comply with court-ordered discovery was willful and contumacious:

‘Pursuant to CPLR 3126, a court may impose discovery sanctions, including the . . . preclusion of evidence, where a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed”‘” … . “Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the defendants failed to make a clear showing of a willful and contumacious failure by the plaintiff to comply with discovery demands. The defendants’ motion papers failed to identify precisely what discovery was demanded and never provided. In addition, the August 2022 order only referred vaguely to, among other things, “authorizations,” and the March 2024 order directed the plaintiff to submit “complete responses” to the defendants’ combined discovery demands without any indication of the nature of the alleged outstanding discovery. Under the circumstances, the defendants failed to make the requisite showing justifying the Supreme Court’s imposition of the subject discovery sanctions … . Noh Soon Park v Food Bazaar Supermarket, 2026 NY Slip Op 05108, Second Dept 8-26-26

Practice Point: Consult this decision for insight into what a defendant must demonstrate to win a motion to preclude the plaintiff from presenting evidence as a sanction for failure to comply with court-ordered discovery.

 

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HERE SUPREME COURT PROPERLY FOUND THERE WAS “GOOD CAUSE SHOWN” FOR AN EXTENSION OF TIME FOR SERVICE OF THE SUMMONS AND COMPLAINT AND THE EXTENSION WAS PROPERLY GRANTED BEFORE THE TRAVERSE HEARING ON THE INITIAL ATTEMPT AT SERVICE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, determined the judge properly granted plaintiff an extension of time to serve the summons and complaint for “good cause shown. ” pursuant to CPLR 306-b. In addition, the judge properly granted the extension before holding the traverse hearing to determine the validity of the initial service of process:

… Supreme Court properly determined that the plaintiff established good cause. The plaintiff established reasonable diligence in ascertaining Brown’s [defendant’s] address. The plaintiff’s counsel reasonably relied upon the representation made by Brown in response to the information subpoena, and counsel confirmed those representations by conducting database inquiries. Moreover, the process server established that he acted with reasonable diligence in effecting service. In response, …

… Supreme Court providently exercised its discretion in granting relief pursuant to CPLR 306-b before holding the traverse hearing [re: the initial attempt at service].. CPLR 306-b does not contain any language stating that a court must decide whether an initial attempt at service of process was valid before granting an extension of time to re-attempt service … . A court may, in the interests of judicial economy, grant an extension before holding a traverse hearing … . M&T Bank v Global Sign Cleaning & Maintenance, Inc., 2026 NY Slip Op 05092, Second Dept 8-25-26

Practice Point: This opinion fleshes out the criteria for an extension of time to serve the summons and complaint “for good cause shown” pursuant to CPLR 306-b.