New York State Law Digest: April 2025

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New York State Law Digest: April 2025

CASE LAW DEVELOPMENTS

Court of Appeals Refuses to Relax Court of Claims Act Pleading Requirements for Child Victims Act Claims

Holds CVA Did Not Alter Substantive Pleading Requirements

In prior editions of the Law Digest, we referred to the significant pleading requirements outside of the CPLR that can have jurisdictional consequences. Specifically, we noted the Court of Claims Act prerequisites to asserting a claim against the State; the statutory requirements as to the commencement of actions are to be strictly construed; and the failure to comply with filing and pleading requirements can result in a jurisdictional defect depriving the Court of Claims of subject matter jurisdiction. We also discussed the decision in Rodriguez v. State of New York, 219 A.D.3d 520 (2d Dep’t 2023), dealing with the interplay between the Court of Claims pleading requirements (Court of Claims Act § 11(b)) and the assertion of a claim under the Child Victims Act (CVA), which revived child sex abuse claims. In Rodriguez, the issue was whether the claimant adequately pleaded the “time when” the claim arose. The court relied on a more relaxed standard in finding that the date ranges provided in the claim, together with the other information set forth in it, were sufficient to satisfy the “time when” requirement. “Given that the CVA allows claimants to bring civil actions decades after the alleged sexual abuse occurred, it is not clear how providing exact dates, as opposed to the time periods set forth in the instant claim, would better enable the State to conduct a prompt investigation of the subject claim (citations omitted).” Id. at 522. A concurring opinion asserted that the same pleading requirements in non-CVA cases should apply in CVA cases.

Similarly, in Wright v. State of New York, 221 A.D.3d 132 (3d Dep’t 2023), another action under the CVA, the Third Department appeared to be applying a more relaxed standard in holding that the claimant adequately pleaded the “time when” the claim arose (and nature of claim) requirement. “Under the of Appeals Refuses to Relax Court of Claims Act Pleading Requirements for Child
particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient (citations omitted).”

On appeal, the Court of Appeals has now reversed. The Court noted that Court of Claims § 11(b)
“places five specific substantive conditions upon the State’s waiver of sovereign immunity.” It requires a claim to “specify (1) ‘the nature of the claim’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed’” (citations omitted).

Wright v. State of New York, 2025 N.Y. Slip Op. 01564 (March 18, 2025) at *8.

Significantly, the Act conditions the State’s waiver of immunity on complying with these requirements, which must be strictly construed. The failure to satisfy the conditions constitutes a jurisdictional defect requiring dismissal. The substantive pleading requirements are meant to assure that the State can investigate the claim promptly and evaluate its liability. Thus, “[c]onsistent with that principle, we have emphasized that ‘the State is not responsible for uncovering information that the claimant is required to allege under section 11 (b)’ (citations omitted).” Id. at *8 – 9.

The Court referred to two of its prior seminal decisions that dismissed claims for failures (1) to state the “time when” the claim accrued by merely referencing the month and year (“even though the claim alleged that the State had employment records from which it could ascertain those details and was required by federal law to maintain this data”); and (2) to specify the “total sum claimed,” notwithstanding that damages in personal injury cases can be “harder to quantify at the outset.” See Lepkowski v. State of New York, 1 N.Y.3d 201 (2003); Kolnacki v. State of New York, 8 N.Y.3d 277 (2007).

The Court acknowledged that CVA claims “may present a distinct challenge” because victims of sexual abuse are required to detail with specificity events that occurred decades earlier. Nevertheless, the Court rejected the claimant’s request to relax the pleading requirements for CVA claims and insisted it was obligated to follow the conditions established by the Court of
Claims Act:

[W]e do not have the leeway to exempt claims brought under the CVA from the limitations the Act imposes
on the State’s waiver of immunity. It has long been settled that a waiver of sovereign immunity “must be clearly expressed,” and that “waiver of immunity by inference [is] disfavored.” The CVA lacks any indication, let alone a clear expression, that the Legislature intended to exempt CVA claims from section 11 (b)’s conditions; indeed, it does not amend or even mention the Act’s pleading requirements (citations omitted).

Id. at *11 – 12.

The Court stressed that this omission was not inadvertent. To the contrary, the Legislature has carved out exceptions when it saw fit:

That contrasts sharply with the Legislature’s decision to amend section 10 by waiving the notice of claim requirement for claims revived by the CVA. We also note that the Legislature has adopted different pleading requirements for claims of unjust conviction and imprisonment (see Court of Claims Act § 8-b), confirming that it knows how to adjust the conditions on the State’s waiver of immunity for certain classes of claims when it seeks to do so (citations omitted).

Id. at *12.

The Court concluded that the claim here lacked the necessary specificity, finding that “the allegations are too spare to enable the State promptly to investigate and ascertain the existence and extent of its liability.” Thus, the claim lacked the

critical information about the abusers. It alleges that the perpetrators included teachers, coaches, counselors, and perhaps other employees of the State, but it does not explain whether those employees were Wright’s teachers, coaches, and counselors, or why, as a child, he was in their company multiple times between 1986 and 1990. The claim also alleges that members of the public were responsible for some of the abuse he suffered, but it does not explain why Wright came into contact with those persons as a child, the context in which adult supervision of any particular activity allegedly should have been provided, or the extent to which the State bore responsibility for Wright’s contact with the abusers. Nor does the claim adequately allege what repeatedly brought Wright to The Egg over a four-year period in the late 1980s, or why, once on the premises, he frequently engaged with both members of the public and State employees.

Id. at *12 – 13.

Reasonable Reliance Need Not Be Established to Invoke Fraud Exception to Four-Year Lookback Rule in Connection With Rent Overcharge Claim

Court of Appeals Remits Case to Appellate Division to Apply Established Standard

As we have previously noted in prior editions of the Law Digest, CPLR 213-a was significantly amended as part of the omnibus Housing Stability and Tenant Protection Act of 2019 (HSTPA). Prior to the 2019 amendment, a four-year limitation period applied to rent overcharges, prohibiting the recovery of overcharges occurring more than four years prior to the imposition of a claim. In addition, examination of the apartment’s rental history prior to the four-year period was precluded (referred to as the “lookback rule”).

The Court of Appeals has recognized one exception – that is, where the tenant proves that the owner engaged in a fraudulent scheme to deregulate the apartment. In Thornton v. Baron, 5 N.Y.3d 175 (2005), the Court held that the legal rent was to be computed as per a “‘default formula,’ otherwise reserved for cases where there are no reliable rent records, setting the base date rent as ‘the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the relevant base date.’ (citations omitted).” Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal (Regina), 35 N.Y.3d 332, 354–55 (2020) (reaffirming the fraud exception).

The question left open was whether a plaintiff alleging the fraud exception needs to establish each element of common law fraud, including reasonable reliance. In Burrows v. 75-25 153rd St., LLC, 2025 N.Y. Slip Op. 01669 (March 20, 2025), the Court has now answered that question in the negative. Simply stated, “[r]easonable reliance by a tenant on an owner’s fraudulent representation of a regulated unit’s rent or status is not required for the fraud exception to apply in a rent overcharge action.” Id. at *4.

One of the complications in the analysis was a footnote in Regina that described the elements of common law fraud. That footnote has caused some courts, including the Appellate
Division in Burrows, to impose a requirement that a tenant establish all elements of a common law fraud cause of action in order to take advantage of the fraud exception to the lookback rule. Here in Burrows, the Court of Appeals holds that such a conclusion is incorrect and that there is no such requirement.

The Court emphasized that requiring a plaintiff to establish reasonable reliance would be “misplaced” because the fraud exception applicable here serves a far different purpose than an allegation of common law fraud. The fraud exception, applicable only to an overcharge claim, simply allows for review of the rental history outside the four-year lookback period and then, as discussed, “solely to ascertain whether fraud occurred – not to furnish evidence for calculation of the base date rent or permit recovery for years of overcharges barred by the statute of limitations.” The exception operates to protect not only current tenants, who may or may not have relied on a fraudulent representation, but future tenants and the overall rent regulatory system. Requiring that a tenant show reliance on a landlord’s fraudulent representation would exempt an “unscrupulous landlord in collusion with a tenant” from the consequences of engaging in a scheme to evade the law’s protection.

Id. at *9 – 10.

In this case, the defendant moved to dismiss. Thus, “the complaint must be construed in the light most favorable to plaintiff and all factual allegations must be accepted as true; ‘[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss’ (citations omitted).” Id. at *10. Moreover, as the trial court stated, “a plaintiff need not ‘demonstrate fraud conclusively to survive a motion to dismiss.’”

While the Court held here that reasonable reliance was not a required element for the fraud exception to apply, it cautioned that to satisfy the exception a plaintiff must allege sufficient indicia of fraud, or a colorable claim of a fraudulent scheme to evade the protections of the rent stabilization laws, to withstand a motion to dismiss on statute of limitations grounds. Such allegations must include more than an assertion that a tenant was overcharged – a mere allegation of a high rent increase is insufficient for the fraud exception to apply (citations omitted).Id. at *11.

Because the Court only dealt with the reliance issue, it remitted the case to the Appellate Division to apply the established standard referenced above.

Treble Damage Award Under RPAPL 861(1) Is Punitive in Nature

Thus, Such an Award Is Unavailable Against the Town

Punitive damages cannot be awarded against the State or its political subdivisions. The issue in Matter of Rosbaugh v. Town of Lodi, 2025 N.Y. Slip Op. 01406 (March 13, 2025), was the authority
of the arbitrator to issue a treble damage award against the Town under RPAPL 861(1). More specifically, the question was whether the treble damages under the relevant statute were punitive in nature. The Court of Appeals concluded that they were and thus the arbitrator lacked the authority to issue such an award.

The plaintiffs brought this action seeking damages as a result of the Town of Lodi arranging to cut and remove trees on plaintiffs’ property. The Town had concluded that low-hanging
branches and dead or dying trees on plaintiffs’ side of an unpaved road were a hazard to travelers and thus had to be cut or removed. After years of litigation, the parties submitted
the matter to arbitration. Ultimately, the arbitrator awarded approximately $150,000, consisting of $2,625 for pre-cut wood that was removed, $1,700 for property restoration, and
$145,047 for treble the “stumpage value” of the damaged or destroyed trees ($48,349) under RPAPL 861(1), plus interest from the date of the award.

The relevant statute, RPAPL 861(1), provides that

[i]f any person, without the consent of the owner thereof, cuts, removes, injures or destroys . . . tree[s] or timber on the land of another . . . an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon . . . .

The phrase “stumpage value” is defined as “the current fair market value of a tree as it stands prior to the time of sale, cutting, or removal.” Treble damages are the default measure for a
recovery, but the statute also provides a “good faith” exception, that is,

if the defendant establishes by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, or that he or she had an easement or right of way across such land which permitted such action, or he or she had a legal right to harvest such land, then he or she shall be liable for the stumpage value or two hundred fifty dollars per tree, or both . . . .

RPAPL 861(2).

Thus, if a defendant establishes its good faith, it is not liable for treble damage but remains responsible for statutory damages. Here, the Town argued that the treble damage award was punitive in nature and could not be assessed against it as a matter of public policy. The trial court disagreed, confirming the award. A majority of the Appellate Division affirmed.

A unanimous Court of Appeals reversed. Referencing the trial court decision, the Court acknowledged that the recovery of punitive damages at common law generally mandates a showing of “actual malice or a wanton, willful or reckless disregard of plaintiffs’ rights,” which RPAPL 861 does not require. However, it added that “when considering a claim created by statute, ‘it
is . . . within the province of the Legislature in authorizing the award of such [punitive or exemplary] damages to establish other and different criteria,’” including requiring less culpable conduct.
Id. at *5 (citing to Welch v. Mr. Christmas, 57 N.Y. 2d 143 (1982)). In Welch, in dictum, the Court had referenced RPAPL 861 as an example of a statute authorizing punitive damages based on such different criteria. Relying on the “good faith” provision, the Court here held that conclusion to be correct:

“In contrast to compensatory damages, which are intended to redress the concrete loss that a plaintiff has suffered by reason of the defendant’s wrongful conduct, punitive damages are essentially private fines levied by civil juries to punish reprehensible conduct, and deter its future occurrence.” As the dissent below asserted, it is unreasonable to read the statute in a way that allows the defendant’s state of mind – a showing the defendant acted in good faith – to reduce a recovery merely intended to make the plaintiff whole. Rather, the plain reading of the text is that treble damages, punitive in nature, are mitigated by the good faith of the defendant (citations omitted).

Rosbaugh, 2025 N.Y. Slip Op. 01406 at *6–7.

The Court also looked to the history and legislative history of the statute, concluding that the treble damages authorized by the statute were meant to punish those who did not act in good faith and are punitive in nature. In fact, that history did not support the argument that the treble damages were intended to compensate the owner for the “intrinsic value” of the tree outside any measure of stumpage “market value.”. . . Treble damages are generally intended as punitive, and treble the stumpage value is not less so, especially with a corresponding good-faith mechanism for reducing those damages. A consistent theme of punishment and deterrence runs throughout the statute’s legislative history (citation omitted).

Id. at *7 – 8.

Court Can Consider Late Served Motion Papers

But the Defendant Did Not Show Good Cause Here

It goes without saying that serving papers in a timely fashion is critical. And yet today, even with expansive electronic filing mitigating some of the timing issues, we see cases dealing with late served motion papers. CPLR 2214(c) provides that “[o]nly papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.” Thus, a court has much discretion as to whether to consider or reject late papers.

A party who serves untimely papers needs to show an excuse, “good cause,” and courts can consider the length of the delay and whether there is any prejudice. See e.g., Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1130 (3d Dep’t 2013) (lower court did not abuse discretion in permitting plaintiff to file late affidavit when there was a relatively short period of delay and the lack of prejudice); Payne v. Buffalo Gen. Hosp., 96 A.D.3d 1628, 1629 (4th Dep’t 2012) (“Plaintiff’s attorney offered a valid excuse for the delay, the delay of only several days was minimal, and ‘any prejudice was alleviated when defendant[s were] permitted to submit . . . reply affidavit[s] in response to plaintiff’s late submission’ (citations omitted).”).

In Mo v. Zhou, 235 A.D.3d 556 (1st Dep’t 2025), the defendant had served its opposition to plaintiff’s motion and its cross-motion in an untimely fashion. The trial court refused to consider defendant’s papers. Apparently, the defendant first argued that he had not defaulted after the court had granted the plaintiff’s motion. The Appellate Division affirmed.

The First Department noted that while CPLR 2214(c) provides that the court can consider late papers, if good cause is shown, the defendant here “never explained why his opposition was untimely, and ‘[n]o excuse at all. . . cannot be “good cause’’’ (citations omitted).” Id. at *2. The court rejected the defendant’s argument “that it is not an absolute requirement in every case for the party who filed opposition a few days late to offer an explanation for the delay.” It stressed that, in the cases relied upon by the defendant, the delinquent party had indeed provided an extensive and detailed excuse. The court similarly rejected the defendant’s resort to CPLR 2004, which enables a court to grant an extension of time, since that section also requires a showing of “good cause.”

Simple lesson: serve your papers timely. If you anticipate a delay, seek an extension from your opponent or, if necessary, the court. The fact that you may have heard stories of or experienced a situation where late papers were accepted is not an excuse.

The Various Procedural Sources Presenting a Trap to the Practitioner

Failure to Comply With Word Count Rule Results in Denial of Defendants’ Summary Judgment Motion

One of the most frustrating aspects of procedure in the New York State Courts is the vast sources of procedure, which present a trap to the practitioner. Reliance on the CPLR alone would be a big mistake since, particularly in the areas of discovery, motion practice, calendar practice and appellate practice, the rules play a critical role. Then there are local rules and judge’s rules, provisions in other statutes, and what I call the dreaded “local practice” in certain courts. That is, procedures applied only in those courts with no real statutory or rule source.

We have previously discussed in the Law Digest the series of new rules adopted in the general trial courts in 2021, some of which were amended in 2022. Many felt those rules were sprung upon practitioners with little notice or input from the greater legal community.

One of those rules was Section 202.8-b entitled “Length of Papers.” Subparagraph (a) provides a word count limit for affidavits, affirmations, briefs, and memoranda of law in chief of 7,000 words each, and 4,200 words for reply affidavits, affirmations, and memoranda. Subparagraph (c) also requires that each of these papers attach to the end of the document a certification by counsel of the number of words in the document. Finally, subsection (f) permits the court, upon oral or letter application, on notice to all parties, to allow for papers exceeding these limits.

In Kaplan v. 55th St. Apts. Inc., 2025 N.Y. Slip Op. 01169 (1st Dep’t Feb. 27, 2025), the Appellate Division affirmed the trial court’s denial of the defendants’ summary judgment motion for failing to comply with the word count (in fact, far exceeding it), without seeking permission, and failing to attach the word count certification. The court also denied the defendants’ motion to renew, which sought relief under CPLR 2001. That section permits a mistake, omission, defect, or irregularity to be corrected, and if a party’s substantial right is not prejudiced, it “shall” be disregarded.

The Kaplan court noted that “the proposed memorandum of law submitted by defendants was still substantially in excess of the word limit set by 22 NYCRR 202.8-b(a). Furthermore, it does not appear that the case is so complex, factually or legally, as to require an exception to the usual rule.” Id. at *2.

Do not ignore the rules (no matter how much they annoy you!) and do your best to keep abreast of any new ones.