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You are here: Home1 / Civil Procedure2 / JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND...
Civil Procedure, Foreclosure, Judges

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed a foreclosure complaint based upon an alleged failure of a condition precedent, and the judge should not have addressed the issue of standing, which was not a jurisdictional issue and was not, and could not be, raised by defendant, who had defaulted:

“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, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint… . The plaintiff's alleged failure to satisfy a condition precedent in the mortgage by failing to provide the defendant with 30 days' written notice of his default in making mortgage payments, even if true, did not deprive the court of jurisdiction to enter a judgment of foreclosure and sale … .

To the extent that the Supreme Court addressed the issue of the plaintiff's standing in the order appealed from, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court Moreover, since the defendant defaulted in appearing or answering the complaint, and failed to move to vacate his default, he is precluded from asserting lack of standing as a defense … . Countrywide Home Loans, Inc. v Campbell, 2018 NY Slip Op 05749, Second Dept 8-15-18

FORECLOSURE (JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))

August 15, 2018
Tags: Second Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-08-15 13:31:242020-01-26 17:46:58JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).
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BANK DID NOT DEMONSTRATE IT ACTED IN ACCORDANCE WITH GENERAL BANKING RULES OR PRACTICES WHEN IT CASHED FORGED CHECKS, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION PROPERLY DENIED (SECOND DEPT),
THE JUDGE IN THIS CUSTODY PROCEEDING SHOULD NOT HAVE SUSPENDED FATHER’S PARENTAL ACCESS WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​
GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY.
THE BANK DID NOT PROVE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; THE AVERMENTS ABOUT DEFENDANT’S DEFAULT WERE BASED UPON THE AFFIANT’S REVIEW OF BUSINESS RECORDS; BECAUSE THE RECORDS WERE NOT ATTACHED, THE AFFIDAVIT WAS INADMISSIBLE HEARSAY (SECOND DEPT).
CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

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DESPITE FAILURE TO DISCLOSE EXPERT, AFFIDAVIT FROM EXPERT PROPERLY CONSIDERED... THEATER NOT LIABLE FOR THIRD PARTY ASSAULT IN PARKING LOT, ASSAULT WAS SUDDEN...
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