You are here: / / SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS...
, ,

SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION, THEREBY DEPRIVING PLAINTIFF OF AN OPPORTUNITY TO BE HEARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the default in this foreclosure action should have been granted. Supreme Court had, sua sponte, dismissed the complaint without affording plaintiff an opportunity to be heard:

Following the plaintiff’s failure to move for an order of reference … , the Court Attorney Referee found … that the plaintiff failed to show good cause for its failure to move for the order of reference as directed and recommended that the action be dismissed. … Supreme Court directed dismissal of the action.

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . As no such extraordinary circumstances were present in this case, we disagree with the Supreme Court’s determination to sua sponte direct dismissal of the complaint, without affording the plaintiff notice and opportunity to be heard … , which “amounted to a denial of the plaintiff’s due process rights” … . Accordingly, the Supreme Court should have granted those branches of the plaintiff’s motion which were to vacate the October 4, 2016, order and to restore the action to active status … . Deutsche Bank Natl. Trust Co. v Winslow, 2020 NY Slip Op 01325, Second Dept 2-26-20

 

You might also like
THE SUPPORT MAGISTRATE SHOULD HAVE INQUIRED FURTHER WHEN FATHER SAID HE WISHED TO HAVE AN ATTORNEY BUT COULD NOT AFFORD ONE; THE SUPPORT MAGISTRATE TOLD FATHER HE WAS NOT ENTITLED TO APPOINTED COUNSEL BECAUSE HE WAS WORKING; FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL (SECOND DEPT).
PLAINTIFF’S ACTION ALLEGING INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE OF AN ASSAULT ON PLAINTIFF IN THE BUILDING LOBBY SHOULD NOT HAVE BEEN DISMISSED; THERE WAS EVIDENCE OF PRIOR CRIMINAL ACTIVITY RAISING A QUESTION OF FACT WHETHER THE ASSAULT WAS FORESEEABLE (SECOND DEPT).
BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF ITS STANDING, ITS COMPLIANCE WITH CONDITIONS PRECEDENT IN THE MORTGAGE, OR ITS COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE RPAPL, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED.
Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them
PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van
QUESTION OF FACT WHETHER THE ENCROACHMENT OF A FIRE ESCAPE HOVERING OVER A PORTION OF DEFENDANT’S PROPERTY WAS HOSTILE AND CONTINUOUS FOR THE PRESCRIPTIVE PERIOD (SECOND 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

PLAINTIFF BANK DID NOT COMPLY WITH RPAPL 1306; DEFENDANT’S CROSS-MOTION... PLAINTIFF WAS RIDING HER BICYCLE ON A SIDEWALK WHEN SHE COLLIDED WITH DEFENDANT’S...