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Dismissal of Deported Defendant’s Appeal (Without Prejudice) Appropriate Where Defendant’s Continued Participation in the Proceedings Would Be Required Should the Appeal Be Successful

The Second Department determined defendant’s appeal of his motion to vacate his conviction should be dismissed without prejudice because he had been deported and his continued participation in the proceedings would be required if the appeal were successful, distinguishing People v Ventura, 17 NY3d 675, where dismissal was not appropriate because the defendant’s participation in the case was no longer required. People v Harrison, 2014 NY Slip Op 02076, 2nd Dept 3-26-14

 

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THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).
Plea Colloquy Raised Concerns Requiring Further Inquiry Re: Defendant’s Mental Health
PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).
PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
Causes of Action Not in Notice of Claim Dismissed.
QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).
DEFENDANT PRESENTED SUFFICIENT PROOF SHE DID NOT LIVE AT THE ADDRESS WHERE THE FORECLOSURE COMPLAINT WAS SERVED TO WARRANT A HEARING; THERE WAS NO SHOWING THAT HER FAILURE TO UPDATE HER ADDRESS WITH THE DEPARTMENT OF MOTOR VEHICLES WAS TO PREVENT SERVICE (SECOND DEPT).
SUPREME COURT WAS WITHOUT POWER TO DIRECT DISMISSAL OF THE FORECLOSURE ACTION FOR FAILURE TO PROSECUTE BECAUSE A 90-DAY NOTICE HAD NOT BEEN SERVED (SECOND DEPT).

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Knowledge of the Health Issue Underlying Plaintiff’s Claim, and Knowledge... Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defense...