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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION WHEN PLAINTIFF BANK ATTEMPT TO TO BRING PREVIOUSLY FILED PAPERS INTO COMPLIANCE WITH SUBSEQUENT ADMINISTRATIVE ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the foreclosure action when plaintiff bank attempted to bring previously filed documents into compliance with subsequent administrative orders:

“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 plaintiff’s counsel attempted to comply, in good faith, with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge, which did not exist at the time of the commencement of the action, or at the time of the plaintiff’s prior motion for an order of reference. Under such circumstances, dismissal was not warranted. Nothing in the Administrative Orders requires the dismissal of an action merely because the plaintiff’s counsel discovers that there was some irregularity or defect in a prior submission, nor is the plaintiff effectively required to commence an entirely new action … . JP Morgan Chase Bank, N.A. v Laszlo, 2019 NY Slip Op 01205, Second Dept 2-20-19

 

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DEFENDANTS FAILED TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
THE JUDGE SHOULD NOT HAVE DISMISSED THE COMPLAINT SUA SPONTE; ALTHOUGH DEFENDANT WAS NOT SERVED, DEFENDANT’S APPEARANCE PRO SE WAIVED ANY LACK-OF-JURISDICTION ARGUMENT (SECOND DEPT).
THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).
RPAPL 1304 AND 1302-a DO NOT APPLY WHERE THE LOAN SUBJECT TO FORECLOSURE IS NOT A “HOME LOAN;” COMPLIANCE WITH RPAPL 1303 IS A CONDITION PRECEDENT TO FORECLOSURE BUT FAILURE TO COMPLY CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL; FAILURE TO PROVIDE NOTICE OF DEFAULT CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).
A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).
PLAINTIFF WAS STRUCK BY A TRAIN; THE “OPEN RUN” DEFENSE ALLOWS A TRAIN OPERATOR TO PROCEED NORMALLY AND ASSUME A PERSON SEEN AHEAD ON THE TRACKS WILL GET OUT OF THE WAY; THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE “OPEN RUN” DEFENSE APPLIES WHETHER THE ACCIDENT HAPPENS IN DAYLIGHT OR, AS HERE, AT NIGHT (SECOND DEPT).
THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).

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