You are here: / Second Department

Tag Archive for: Second Department

Court Has Discretion to Deny a Motion to Dismiss for Failure to Prosecute Pursuant to CPLR 3216 Even in the Absence of an Adequate Excuse and a Showing of a Potentially Meritorious Cause of Action

In finding plaintiff did not intend to abandon the action, the Second Department explained the “extremely forgiving” nature of CPLR 3216:

Where a 90-day demand to resume prosecution of an action pursuant to CPLR 3216(b)(3) has been properly served, a plaintiff may avoid dismissal, as a matter of law, by either timely filing a note of issue or moving, before the default date, to vacate the notice or to extend the 90-day period (see CPLR 3216[c]…). Even where a plaintiff has failed to pursue either of these options, however, “the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … .

Moreover, CPLR 3216 is an “extremely forgiving” statute …, which “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . Under the plain language of CPLR 3216, a court retains some “residual discretion” to deny a motion to dismiss, even when a plaintiff fails to comply with the 90-day requirement and additionally fails to proffer an adequate excuse for the delay or a potentially meritorious cause of action … . Thus, while the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see CPLR 3216[e]…), “such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, the record demonstrates affirmative steps taken by the plaintiff to continue the prosecution of this action that are inconsistent with an intent to abandon it. Ramon v Zangari, 2014 NY Slip Op 02420, 2nd Dept 4-9-14

 

Objections Based Upon Lack of Due Execution and Lack of Testamentary Capacity Properly Dismissed/Relevant Criteria Explained

The Second Department determined the objections to probate based upon lack of due execution and lack of testamentary capacity were properly dismissed:

In support of that branch of her motion which was for summary judgment dismissing the objection based on lack of due execution, the petitioner made a prima facie showing that the will was duly executed pursuant to EPTL 3-2.1. The deposition testimony of the attorney-drafter, who supervised the execution of the will and acted as an attesting witness, and of the second attesting witness, demonstrated that the statutory requirements for due execution were satisfied … . “Further, where, as here, the drafting attorney supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” … . “The attestation clause and self-proving affidavit accompanying the propounded will also give rise to a presumption of compliance with the statutory requirements” … . In opposition to the petitioner’s prima facie showing of entitlement to judgment as a matter of law dismissing the objection based on lack of due execution, the objectant relied on hearsay evidence, which, by itself, was insufficient to raise a triable issue of fact … .

The petitioner established her prima facie entitlement to judgment as a matter of law dismissing the objection based on lack of testamentary capacity by submitting the self-proving affidavit and the deposition testimony of the attesting witnesses. The petitioner’s submissions demonstrated that the decedent understood the nature and consequences of making the will, the nature and extent of her property, and the natural objects of her bounty … . In opposition, the objectant failed to raise a triable issue of fact as to whether the decedent lacked testamentary capacity … . Matter of Templeton, 2014 NY Slip Op 02445, 2nd Dept 4-9-14

 

Remarks Made In the Course of Litigation Privileged

The Second Department determined that the allegedly defamatory remarks were privileged because they were made during the course of litigation:

To properly state a cause of action alleging defamation, a plaintiff must allege that, without privilege or authorization, and with fault as judged, at minimum, by a negligence standard, the defendant published to a third party a false statement … . Additionally, unless the defamatory statement fits within one of the four “per se” exceptions …, a plaintiff must allege that he or she suffered “special damages”—–“the loss of something having economic or pecuniary value” … . Where an allegedly false statement is defamatory per se, the law presumes that damages will result, so the plaintiff need not allege or prove them … . An otherwise defamatory statement may be “privileged” and therefore not actionable … . Generally, as relevant here, statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court are accorded an absolute privilege, so long as the statements may be considered in some way “pertinent” to the issue in the proceeding … . This privilege, or “immunity” …, applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made… . El Jamal v Weil, 2014 NY Slip Op 02408, 2nd Dept 4-9-14

 

No Duty Owed by Agent to Client—Client Never Requested Type of Insurance At Issue

The Second Department determined an insurance agent was not obligated to indemnify the plaintiffs in the underlying action because the client never requested the specific (automobile) coverage at issue. The court explained the nature of a duty owed by an agent to the agent’s client:

“An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time or to inform the client of the inability to do so” … . This “duty is defined by the nature of the client’s request” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage” … . Here, Ginsberg, a Nationwide insurance agent who sold the plaintiff … the subject policies of insurance, established, prima facie, that the plaintiffs did not specifically request automobile coverage, either in connection with their initial 2003 insurance applications, or in connection with subsequent renewal applications. Maxwell Plumb Mech Corp v Nationwide Prop & Cas Ins Co, 2014 NY Slip Op 02412, 2nd Dept 4-9-14

 

Question of Fact About Whether Good Faith Lender, Which Recorded Its Mortgage First, Had a Duty to Inquire About a Prior Mortgage

The Second Department determined there was a question of fact about the priority of a mortgage held by a good-faith lender for value and recorded first:

“Under New York’s Recording Act (Real Property Law § 291) a mortgage loses its priority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender for value, and records its mortgage first without actual or constructive knowledge of the prior mortgage” … . “[A] mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue” … . Here, the moving defendants demonstrated, prima facie, that they have a first lien with respect to Lot 56 by submitting evidence that they were good faith lenders for value protected by Real Property Law § 291 … . However, in opposition, the plaintiff’s submissions … raised a triable issue of fact as to whether the moving defendants had a duty to inquire about whether the mortgage previously entered into …. was intended to encumber the entirety of [the property].   Wells Fargo NA v Savinetti, 2014 NY Slip Op 02428, 2nd Dept 4-9-14

 

,

When the Police Are Aware Suspect Is Represented by an Attorney and the Attorney’s Assistance Is Specifically Requested, the Attorney Must Be Contacted Before Conducting a Lineup Identification Procedure

Although the issue was not raised by the facts in the case, the Second Department noted the proper procedure for a lineup when the police are aware the suspect is represented by an attorney:

Where police are “aware that a . . . defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney,” the police may not proceed with a lineup procedure, “without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear” … . People v Blyden, 2014 NY Slip Op 02448, 2nd Dept 4-9-14

 

, ,

Shareholder in a Cooperative Apartment Corporation Had Right to Inspect Books

The Second Department determined a shareholder in a cooperative apartment corporation (Acropolis) had a right to inspect the corporate books, including the  minutes of board meetings:

…[T]he petitioner satisfied the requirements of Business Corporation Law § 624(b), and is, therefore, entitled to a list of shareholders and their mailing addresses … as well as all Board meeting minutes from 2001 to the present. Moreover, in light of the terms of the relevant proprietary lease …, the petitioner established his contractual right to inspect all of Acropolis’s books of account from 2001 to the present. With respect to the petitioner’s entitlement to inspect additional corporate documents, “a shareholder has a common-law right to inspect a corporation’s books and records if the inspection is sought in good faith and for a valid purpose” … . Contrary to Acropolis’s contention, the Supreme Court was not required to hold a hearing prior to issuing its order and judgment directing it to allow the petitioner to review its books and records, because no substantial question of fact existed as to the petitioner’s good faith and purpose in seeking Acropolis’s books and records… . Matter of Goldstein v Acropolis Gardens Realty Corp, 2014 NY Slip Op 02436, 2nd Dept 4-9-14

 

, ,

Failure to Allege a Favorable Result Would Have Obtained “But For” the Attorney’s Alleged Malpractice Required Dismissal of the Complaint

The Second Department determined a legal malpractice action was properly dismissed because the plaintiff failed to adequately allege that but for the malpractice the result would have been favorable to the plaintiff.  The court explained the elements of a legal malpractice action:

To recover damages in a legal malpractice action, a plaintiff must establish “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . ” A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'” … . Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Benishai v Epstein, 2014 NY Slip Op 02404, 2nd Dept 4-9-14

 

Neglect Finding Can Be Based Upon a Single Incident of Excessive Corporal Punishment

The Second Department noted that a finding of neglect can be based upon a single incident of excessive corporal punishment:

Neglect may be established by even a single incident of excessive corporal punishment … . The Family Court’s assessment of the credibility of witnesses is entitled to considerable deference … .Here, contrary to the appellant’s contention, the Family Court’s finding of neglect of the child Shervon M., based on excessive corporal punishment, was supported by a preponderance of the evidence (see Family Ct Act § 1012[f][i][B]…). The Family Court’s finding that the appellant engaged in excessive corporal punishment when he struck the child Shervon M. several times with a belt, causing raised red marks on her arm and legs, is supported by the evidence presented at the fact-finding hearing. Shervon’s out-of-court statements that the appellant struck her with a belt were sufficiently corroborated by the caseworker’s observations of Shervon’s injuries and the appellant’s admission to the caseworker that he had struck Shervon with a belt in the past (see Family Ct Act § 1046[a][vi]…).  Matter of Nurridin B, 2-14 NY Slip Op 02431, 2nd Dept 4-9-14

 

Mother’s Interference With Relationship Between Father and Child Warranted Modification of Custody Arrangement Entered Into by Stipulation

The Second Department determined father had made a sufficient showing of a change in circumstances to justify a modification of custody arrangements created by stipulation:

Here, the father established that there had been a sufficient change in circumstances since the time of the stipulation. Specifically, he demonstrated that the mother had interfered with his relationship with the child, such that a modification in the custody arrangement was in the best interests of the child. The mother’s unfounded allegations of sexual abuse of a child that she made against the father were an act of interference with the parent-child relationship so inconsistent with the best interests of the child as to raise a strong probability that the mother is unfit to act as custodial parent … . The mother’s conduct here in making these unfounded allegations demonstrated a purposeful placement of her self-interest above the interests of others … . The record shows that the father is more likely than the mother to foster a relationship between the child and the noncustodial parent … . The mother’s unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court’s determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child’s best interests. Matter of Fargasch v Alves, 2014 NY Slip Op 02435, 2nd Dept 4-9-14

 

Categories

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

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

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