Notice requirement in a foreclosure action.

RPAPL 1304(1) provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." Strict compliance with the statutory notice provision is a condition precedent to the commencement of a foreclosure action. Proof of mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that the items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. Here, the plaintiff established that the requisite notice was sent to the defendant in the prescribed manner by submitting the affidavit of an employee of the plaintiff's loan servicer, who had knowledge of the loan servicer's standard office procedures for mailing RPAPL 1304 notices and described those notices, and, by reference to business records annexed to the affidavit, which confirmed that those procedures were adhered to in this case. In opposition, the defendant's bare denial of receipt of the notice was insufficient to raise a triable issue of fact.

Bank of Am., N.A. v. Gonzalez, NY Slip Op 04098 (2d Dep't August 2, 2023)

Here is the decision.

Dismissal after a 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." In order to avoid dismissal, it is not necessary that the plaintiff actually obtain a default judgment within one year of the default. In fact, the plaintiff is not even required to seek a default judgment within a year. The case is not subject to dismissal as long as the plaintiff is taking proceedings that manifest an intent not to abandon the case but, instead, to seek a judgment. In addition, where an action is subject to a mandatory settlement conference, pursuant to CPLR 3408), the one-year deadline imposed by CPLR 3215(c) is tolled.

Bank of Am. N.A. v. Bhola, NY Slip Op 04097 (2d Dep't August 2, 2023)

Here is the decision.

Limitations period on a foreclosure action.

An action to foreclose a mortgage is subject to a six-year statute of limitations, pursuant to CPLR 213[4]. Once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. The filing of a verified foreclosure complaint may evince an election to accelerate. Lenders may revoke the acceleration of the full mortgage loan balance, so long as the revocation is accomplished by an affirmative act occurring within six years of the earlier acceleration. 

Abadin v. HSBC Bank USA, N.A., NY Slip Op 04095 (2d Dep't August 2, 2023)

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Terminating a probationary teacher.

A probationary teacher may be terminated during the probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith. The petitioner bears the burden of establishing, by competent evidence, bad faith or illegal reasons. Here, the evidence demonstrates that the petitioner received multiple letters to file, that she received an unsatisfactory observation rating, and that she lacked professionalism during her probationary employment. This evidence demonstrated that the respondent denied the petitioner tenure and discontinued her probationary employment in good faith.

Matter of Terelle v. New York City Dept. of Educ., NY Slip Op 03921 (2d Dep't July 26, 2023)

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Appellate practice.

An order denying a motion to compel a witness to answer questions propounded at an examination before trial is similar to a ruling made in the course of the examination itself, and is not appealable as of right, even where it was made upon a full record and on the plaintiffs' motion to compel responses. Neither is an order granting a motion for a protective order precluding certain questioning of a witness at a deposition appealable as of right. Here, the plaintiffs sought leave to appeal after their appeal was perfected. Leave is denied.

Martino v. Jae Ho Lee, NY Slip Op 03915 (2d Dep't July 26, 2023)

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Contract law.

A contract is interpreted in accordance with the intent of the parties, and the best evidence of their intent is what they express in their written agreement. Clear and unambiguous contractual terms must be enforced according to their plain meaning, and when the terms are clear and unambiguous, the court cannot look beyond the four corners of the contract. A contract is unambiguous if, on its face, it is reasonably susceptible of only one meaning.  

B.D. v. E.D., NY Slip Op 03971 (1st Dep't July 27, 2023)

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A school's duty to supervise.

Schools are under a duty to supervise adequately the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  The duty of care is that of a reasonably prudent parent. Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not a proximate cause of the injury, and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted.

K.L. v. City of New York, NY Slip Op 03914 (2d Dep't July 26, 2023)

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Tort liability in favor of a non-party to the contract.

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party. There are three exceptions to the general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. Here, the plaintiff did not allege facts in the complaint or verified bill of particulars that would establish the possible applicability of any of the three exceptions. In moving for summary judgment, the defendant is not required to demonstrate that these exceptions do not apply. The defendant's motion is granted.

Farmer v. Gazebo Contr., Inc., NY Slip Op 03849 (2d Dep't July 19, 2023)

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Contract law.

A stipulation of settlement entered into by the parties in a divorce action, which is incorporated, but not merged into a judgment of divorce, constitutes a contract between the parties, subject to the principles of contract interpretation. 

Cervera v. Cervera, NY Slip Op 03846 (2d Dep't July 19, 2023)

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CPLR 3215(c).

A defendant's active participation in the litigation may constitute a waiver of the right to seek dismissal. Here, the defendant did not move to dismiss the complaint until nearly three years after his attorney filed a notice of appearance.  In addition, the defendant never sought to vacate his default in answering the complaint, and, therefore, he was precluded from raising his proffered defenses of the plaintiff's failure to comply with RPAPL 1304. 

Bank of Am., N.A. v. Carapella, NY Slip Op 03844 (2d Dep't July 19, 2023)

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Law of the case.

On plaintiff's summary judgment motion, the law of the case doctrine does not apply to a prior order in the action because that order was rendered on a motion to dismiss pursuant to CPLR 3211, which applies standards different from those on summary judgment. 

938 St. Nicholas Ave. Lender LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp., NY Slip Op 03885 (1st Dep't July 20, 2023)

Here is the decision.