You are here: / / COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT...
, ,

COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT TO CPLR 2001; SUA SPONTE DISMISSAL OF COMPLAINT NOT WARRANTED.

The Fourth Department determined Supreme Court should have granted plaintiff’s motion to substitute nunc pro tunc an affidavit of merit and amount due in a foreclosure proceeding. Plaintiff could not confirm the proper execution of the original affidavit (a requirement of an administrative order of the chief administrative judge) and sought to substitute the original with an identical affidavit, the proper execution of which could be confirmed. Supreme Court denied the motion and dismissed the complaint sua sponte. The Fourth Department held that the dismissal was not warranted and CPLR 2001 permitted the substitution:

 

” A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” … . Here, we conclude that “[t]he fact that . . . plaintiff’s [new] attorney[s] attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time [the judgment of foreclosure and sale was granted], does not qualify as such an extraordinary circumstance’ ” that would support a sua sponte dismissal … . Indeed, “[n]othing in the Administrative Order[] requires the dismissal of an action merely because the plaintiff’s attorney[s] discover[] that there was some irregularity or defect in a prior submission” … . Thus, contrary to the court’s determination, we conclude that plaintiff is not “effectively required to commence an entirely new action” … .

We further conclude that the court erred in denying that part of plaintiff’s motion seeking to substitute the affidavit of merit and amount due. “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . In addition, “[p]ursuant to CPLR 5019 (a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party” … . Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff’s ability to comply with the Administrative Order, and “[t]he attorney affirmation is not itself substantive evidence” … . We further conclude that “[n]o substantial right of [defendant .. .would] be affected by the court’s substitution” … . Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure. Wells Fargo Bank, N.A. v Watanabe, 2016 NY Slip Op 01096, 4th Dept 2-11-16

 

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/FORECLOSURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/AFFIDAVIT OF MERIT AND AMOUNT DUE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)

You might also like
Plaintiff, a Pedestrian, Was Injured When a Traffic Sign Struck by a Car Broke Off and Hit Her—County Owed Plaintiff a Duty to Properly Install the Sign—Question of Fact Raised Whether Improper Installation of a “Break Away” Sign Was a Proximate Cause of the Plaintiff’s Injuries
THE $1000 FINE FOR THE DWI COUNT WAS HARSH AND EXCESSIVE; THE FAILURE TO IMPOSE A FINE FOR AGGRAVATED UNLICENSED OPERATION WAS ILLEGAL; REFUSING TO SUBMIT TO A BREATH TEST IS NOT A COGNIZABLE OFFENSE (FOURTH DEPT).
THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).
ATTEMPTED MENACING OF A POLICE OFFICER IS NOT A COGNIZABLE CRIME; CHARGING ATTEMPTED MENACING OF A POLICE OFFICER IS A MODE OF PROCEEDINGS ERROR THAT NEED NOT BE PRESERVED (FOURTH DEPT).
Spectator Watching People Sledding Assumed the Risk of Being Struck
NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).
“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained
THE UNIQUE PROOF REQUIREMENTS FOR CRIMINAL CONTEMPT FIRST DEGREE FOR VIOLATION OF AN ORDER OF PROTECTION WERE NOT MET; THE FACT THAT DEFENDANT STIPULATED TO THE ACCURACY OF AN INACCURATE SPECIAL INFORMATION ABOUT A PRIOR CRIMINAL CONTEMPT CONVICTION DOES NOT REQUIRE A DIFFERENT RESULT (FOURTH DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE... BOARD OF RESIDENTIAL COOPERATIVE CORPORATION UNREASONABLY WITHHELD CONSENT TO...