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Supreme Court Erred by Making Dispositive Rulings on Grounds Not Raised in the Motion Papers

The Second Department determined Supreme Court should not have made dispositive rulings on grounds not raised in the motion papers. The court had granted plaintiff’s (Evans’) motion to discharge Citifinancial’s mortgage and cancel the notice of pendency:

Civil Practice Law and Rules § 2214(a) provides that “[a] notice of motion shall specify . . . the relief demanded and the grounds therefor.” However, the court “may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . * * *

On grounds not raised or argued by the parties nor contained in the pleadings, the Supreme Court granted Evans’s motion, determining that Citifinancial never actually owned the mortgage. The Supreme Court determined that a prior assignment of the mortgage to Citifinancial’s predecessor had been defective on the grounds that the power of attorney needed to execute such assignment was not recorded and, as a result, the mortgage could not thereafter properly be assigned to Citifinancial. The Supreme Court erred in discharging the mortgage and cancelling the notice of pendency on such grounds since Evans failed to dispute or contest the validity of Citifinancial’s mortgage and actually affirmatively acknowledged the validity of the mortgage in his complaint and motion to the court … . Evans v Argent Mtge Co LLC, 2014 NY Slip Op 05835, 2nd Dept 8-20-14

 

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