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THE RECORD DOES NOT REFLECT THAT MOTHER IN THIS CHILD-SUPPORT PROCEEDING WAS INFORMED OF HER RIGHT TO COUNSEL, HER RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL, OR HER WAIVER OF THAT RIGHT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate erred by not, on the record, informing mother of her right to counsel in this proceeding brought by father seeking child support from mother:

The Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at [her] own expense, and that [s]he was entitled to an adjournment for the purpose of retaining the services of an attorney” … . The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right … . Matter of Moor v Moor, 2023 NY Slip Op 03918, Second Dept 7-26-23

Practice Point: Mother appeared pro se in this proceeding before a Support Magistrate brought by father for child support from mother. There is nothing on the record indicating mother was informed of her right to counsel, her right to an adjournment to retain counsel, or her waiver of her right to counsel. New hearing ordered.

 

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ORDERS COMPELLING ANSWERS TO DEPOSITION QUESTIONS OR PRECLUDING QUESTIONING ARE NOT APPEALABLE AS OF RIGHT; A REQUEST FOR PERMISSION TO APPEAL AFTER THE APPEAL IS PERFECTED IS GENERALLY DENIED; THE HOSPITAL DID NOT DEMONSTRATE THE SUBJECT MEDICAL RECORDS WERE PRIVILEGED AS PART OF A QUALITY ASSURANCE REVIEW (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined (1) there is no appeal as of right from the denial of a motion to compel a witness to answer deposition questions, (2) there is no appeal as of right from a protective order precluding certain questioning, (3) an appellate court will generally not consider a request for permission to appeal made after the appeal is perfected, (4) the hospital did not demonstrate certain medical records were privileged as part of a quality assurance review:

… [T]he plaintiffs sought leave to appeal after their appeal was perfected. As this Court has repeatedly observed under comparable circumstances, “‘we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal'” … . * * *

Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or reports “required by the department of health pursuant to [Public Health Law § 2805-l],” are generally not discoverable … . Nyack Hospital, as the party seeking to invoke the privilege, had the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Nyack Hospital merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Martino v Jae Ho Lee, 2023 NY Slip Op 03915, Second Dept 7-26-23

Practice Point: If an order is not appealable as of right (here orders re: compelling answers or precluding questions during deposition), the appellate court will not generally grant permission to appeal after the appeal is perfected.

Practice Point:  Here in this med mal case the hospital did not demonstrate the medical records were privileged as part of a quality assurance review.

 

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​THE BUYER WAS NOTIFED TIME WAS OF THE ESSENCE IN THIS REAL ESTATE DEAL AND WAS GIVEN A REASONABLE TIME IN WHICH TO CLOSE; THEREFORE THE BUYER WAS NOT ENTITLED TO SPECIFIC PERFORMANCE AND THE SELLERS WERE ENTITLED TO THE DOWN PAYMENT AS LIQUIDATED DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the buyer in this real-estate deal could not demand specific performance because he was notified time was of the essence and was provided with a reasonable time within which to close. The sellers were entitled to keep the down payment as liquidated damages:

… [T]he buyer does not have a cause of action for specific performance. Although time was not made of the essence in the contract, the defendants subsequently provided valid notice that time was of the essence insofar as the notice: (1) gave clear, distinct, and unequivocal notice that time was of the essence, (2) gave the buyer a reasonable time in which to act, and (3) informed the buyer that if he did not perform by the designated date, he would be considered in default … . “What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … . Although the determination of reasonableness is usually a question of fact, it may become a question of law where, as here, there is no dispute as to the facts … . Contrary to the buyer’s contention, he had a reasonable amount of time to perform, where, among other things, he had approximately 62 days to close from the initial closing date. Because he failed to close after the notice to cure was sent, the defendants were entitled, pursuant to the contract, to terminate the contract and retain the down payment as liquidated damages … . Further, the parties’ submissions clearly demonstrate that the buyer did not substantially perform his contractual obligations, and was not ready, willing, and able to perform his remaining obligations. His allegations that he remained ready, willing, and able to close and had fulfilled all of his obligations under the contract are bare legal conclusions, which are not presumed to be true … . Herman v 818 Woodward, LLC, 2023 NY Slip Op 03912, Second Dept 7-26-23

Practice Point: Here the buyer in this real estate deal was notified that time was of the essence and was given a reasonable time during which to close. The buyer, therefore, was not entitled to specific performance and the sellers were entitled to the down payment as liquidated damages.

 

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IN THIS SLIP AND FALL CASE, THE JURY PROPERLY FOUND THE LANDLORD NEGLIGENTLY FAILED TO MAINTAIN A HANDRAIL BUT THE LOOSE HANDRAIL WAS NOT A PROXIMATE CAUSE OF THE FALL (SECOND DEPT). ​

The Second Department, over a dissent, determined the jury in this slip and fall case properly rejected plaintiff’s testimony because it was inconsistent. The jury found that the landlord negligently failed to maintain a handrail which had become loose, but that the loose handrail was not a proximate cause of plaintiff’s fall:

Given the nature of the plaintiff’s testimony, there is no basis to disturb the jury’s determination. “Where, as here, ‘there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … .

Moreover, the jury was not required to accept the testimony of the plaintiff’s expert to the exclusion of the facts and circumstances provided by other testimony and evidence—including the plaintiff’s own inconsistent version of the accident … . Although the plaintiff’s expert opined that the proximate cause of the accident was the loose handrail, the expert admitted at trial that the plaintiff’s testimony that she was disposing of a bag of garbage prior to the accident was not included in his report. Thus, the jury was free to reject the opinion proffered by the plaintiff’s expert despite the absence of a defendant’s expert. Galeano v Giambrone, 2023 NY Slip Op 03909, Second Dept 7-26-23

Practice Point: Because of the plaintiff’s inconsistent testimony about how she fell, the jury properly rejected her testimony as well and the plaintiff’s expert’s testimony, despite the absence of a defense expert. The jury could have properly determined the landlord was negligent in failing to maintain a handrail, but the loose handrail was not a proximate cause of the plaintiff’s fall.

 

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PURSUANT TO THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) THE BANK IS ESTOPPED FROM CLAIMING (1) THE VOLUNTARY DISCONTINUANCE STOPPED THE RUNNING OF THE STATUTE OF LIMITATIONS, AND (2) THE DEBT WAS NOT ACCELERATED BECAUSE THE BANK DID NOT HAVE STANDING WHEN THE FORECLOSURE ACTION WAS BROUGHT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank was estopped pursuant to the Foreclosure Abuse Prevention Act (FAPA) from claiming the voluntary discontinuance of the action stopped the running of the statute of limitations. The bank was also estopped by the FAPA from claiming the mortgage debt was not validly accelerated because the bank did not have standing when the foreclosure action was commenced:

… [T]he plaintiff … contends that it raised a triable issue of fact because the voluntary discontinuance of the 2008 action revoked its acceleration of the mortgage debt in that action and, thus, the instant action is timely. The plaintiff also contends that the instant action is timely because it did not have standing to commence the 2008 action, and, therefore, the mortgage debt was not validly accelerated by the commencement of that action. … [U]nder the recently enacted Foreclosure Abuse Prevention Act (… hereinafter FAPA), the voluntary discontinuance of the 2008 action did not “‘in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute'” … . Also, under FAPA, the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2008 action based on its lack of standing, and that, therefore, the instant action is timely. CPLR 213(4), as amended by FAPA, added paragraph (a), which provides that “[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.” Here, since the 2008 action was voluntarily discontinued, and therefore was not “dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated,” the plaintiff is estopped under FAPA from asserting that the debt was not validly accelerated by the commencement of the 2008 action based on the plaintiff’s lack of standing … . Deutsche Bank Natl. Trust Co. v Wong, 2023 NY Slip Op 03908, Second Dept 7-26-23

Practice Point: The Foreclosure Abuse Prevention Act precluded the bank from claiming the voluntary discontinuance stopped the running of the statute of limitations and the bank’s lack of standing when the foreclosure action was brought invalidated the acceleration of the debt.

 

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PLAINTIFF IN THIS FORECLOSURE ACTION TIMELY COMMENCED THE ACTION PURSUANT TO THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS PROVIDED BY CPLR 205-A (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action was timely commenced pursuant to the six-month extension of the statute of limitations provided by CPLR 205-a:

As part of the recently enacted Foreclosure Abuse Prevention Act … , a new section, CPLR 205-a, which governs the termination of certain actions, including an action upon a bond or note, the payment of which is secured by a mortgage on real property related to real property, was enacted. As relevant here, under both CPLR 205(a) and CPLR 205-a, where an action is timely commenced and is terminated for any reason other than those specified in the statutes, the plaintiff may commence a new action upon the same transaction or occurrence within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period … . * * *

Here, the requirements of CPLR 205-a have been satisfied. It is uncontested that the instant action, commenced within six months of termination of the 2017 action … , would have been timely commenced in 2017, and that the instant action is based on the same occurrence as the 2017 action, namely, the default on the payment obligations under the March note (see CPLR 205-a). Further, it is undisputed that the prior action was not terminated for any reason enumerated in CPLR 205-a. Sperry Assoc. Fed. Credit Union v John, 2023 NY Slip Op 03880, Second Dept 7-19-23

Practice Point: The foreclosure action was timely commenced pursuant to CPLR 205-a, the newly enacted Foreclosure Abuse Prevention Act.

 

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THE “NOTICE OF INTENT TO FORECLOSE” FELL SHORT OF AN ACCELERATION OF THE MORTGAGE DEBT AND DID NOT TRIGGER THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to RPAPL 1501(4) to cancel and discharge a mortgage should not have been granted. The ground for the motion was the claim the statute of limitations for a foreclosure action had run. But the Second Department determined the “Notice of Intent to Foreclose” did not accelerate the mortgage. Therefore the statute of limitations had not begun to run:

“‘The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt'” … . Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the holder of the note elects in the complaint to call due the entire amount secured by the mortgage, or through an unequivocal acceleration notice transmitted to the borrower … . A notice of acceleration of a debt must be clear and unequivocal, and to constitute such clear and unequivocal acceleration of a debt, the notice must demand an immediate payment of the entire outstanding loan and not refer to acceleration only as a future event … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law. The language in a 2008 “Notice of Intent to Foreclose,” that the mortgage debt would be accelerated if the borrower did not pay the arrears as set forth in the notice by September 19, 2008, was merely an expression of future intent that fell short of an actual acceleration … . Sansone v North Shore Invs. Realty Group, LLC, 2023 NY Slip Op 03876, Second Dept 7-19-23

Practice Point: Where the mortgage debt is paid in installments, the debt must be accelerated to start the statute of limitations for a foreclosure action. Here the “Notice of Intent to Foreclose” was a statement of future intention which did not accelerate the debt.

 

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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary:

… [S]imilar to an erroneous address contained in an affidavit of service … , an erroneous mailing date “affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment” … . Here, the second amended affidavit of service attempted to correct the admitted erroneous mailing date contained in the original affidavit of service and the first amended affidavit of service, and therefore should not have been considered … . HSBC Bank USA, N.A. v Rini, 2023 NY Slip Op 03856, Second Dept 7-19-23

Practice Point: A wrong address or a wrong mailing date in an affidavit of service cannot be corrected by an amended affidavit.

 

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A JUDICIAL FORECLOSURE SALE SHOULD BE SET ASIDE IF THERE IS DOUBT ABOUT THE TITLE (HERE SUSPICION A DEED WAS FORGED); CAVEAT EMPTOR (BUYER BEWARE) IS NOT STRICTLY APPLIED TO A JUDICIAL SALE AT AUCTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court and setting aside the judicial foreclosure sale, determined the possibility a deed was forged cast suspicion on the fairness of the sale. The court noted that caveat emptor (buyer beware) is not strictly applied to a judicial sale:

“‘[A] purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title,’ and, ‘if it was bad or doubtful, he [or she] should, on his [or her] application, be relieved from completing the purchase'” … .

Moreover, “[t]he rule that a buyer must protect himself [or herself] against undisclosed defects does not apply in all strictness to a purchaser at a judicial sale” … . “[A] sale of land in the haste and confusion of an auction room is not governed by the strict rules applicable to formal contracts made with deliberation after ample opportunity to investigate and inquire” … .Golden Bridge, LLC v Rutland Dev. Group, Inc., 2023 NY Slip Op 03854, Second Dept 7-19-23

Practice Point: Here the purchase of property at a foreclosure judicial sale was set aside because of suspicion a deed was forged. The doctrine of caveat emptor (buyer beware) is not strictly applied to a judicial sale.

 

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