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DEFENDANTS PRESENTED EVIDENCE THE BANK ACCEPTED PAYMENTS IN LESS THAN THE REQUIRED AMOUNT AFTER THE ALLEGED DEFAULT; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because defendants presented evidence the bank had accepted payments after the alleged default:

… [T]he defendants presented evidence demonstrating that, subsequent to their alleged default in September 2008, the plaintiff accepted mortgage payments in a lesser amount than originally required, which raises triable issues of fact as to whether the parties entered into a modification agreement subsequent to the defendants’ alleged default in September 2008, and whether there was a continuing default by the defendants from 2008 … . U.S. Bank N.A. v McEntee, 2019 NY Slip Op 07636, Second Dept 10-23-19

 

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DEFENDANTS’ FAILURE TO DEMONSTRATE THE NORMAL RISKS ASSOCIATED WITH HORSEBACK RIDING WERE NOT UNREASONABLY INCREASED BY THE RIDING INSTRUCTOR REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.
PLAINTIFF BANK WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS REFORECLOSURE ACTION; THERE WAS A QUESTION OF FACT WHETHER WILLFUL NEGLECT BY PLAINTIFF BANK OR ITS PREDECESSOR IN INTEREST RESULTED IN THE DEFECT IN THE ORIGINAL FORECLOSURE ACTION (SECOND DEPT).
THE AFFIDAVIT SUBMITTED BY THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF RPAPL 1304 (SECOND DEPT). ​
CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).
DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT).
SALE OF LAND ORIGINALLY SET ASIDE FOR A CEMETERY WITHOUT RESTRICTIONS CONSTITUTED AN ABANDONMENT OF THE CEMETERY-RELATED USE-RESTRICTIONS ON THE LAND (SECOND DEPT).
THE LAWSUIT SOUGHT RETURN OF A DOWN PAYMENT UNDER A REAL ESTATE CONTRACT; BECAUSE THE LAWSUIT DID NOT AFFECT TITLE, POSSESSION, USE OR ENJOYMENT OF THE PROPERTY A NOTICE OF PENDENCY IS NOT APPROPRIATE (SECOND DEPT).
ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

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