You are here: / / THE BANK’S MOTION TO RESTORE THE 2009 FORECLOSURE ACTION WHICH HAD...
,

THE BANK’S MOTION TO RESTORE THE 2009 FORECLOSURE ACTION WHICH HAD BEEN ADMINISTRATIVELY, BUT NOT FORMALLY, DISMISSED SHOULD HAVE BEEN GRANTED; THE BANK HAD PREVIOUSLY STATED ITS INTENTION TO DISCONTINUE THE 2009 FORECLOSURE BUT THE MOTION TO RESTORE WAS NOT PRECLUDED BY THE JUDICIAL ESTOPPEL DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank should have been allowed to restore a 2009 foreclosure action which had been administratively, but not formally, dismissed. The court noted that the bank’s prior statement of its intention to discontinue the 2009 action did not trigger the judicial estoppel doctrine:

While, in an effort to successfully prosecute the 2015 foreclosure action, the Bank represented that it would seek to discontinue the 2009 action, it is not judicially estopped from changing its position. ” [A] party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” … . The Bank did not obtain a favorable judgment in the 2015 foreclosure action.

The Supreme Court should have granted that branch of the Bank’s motion which was to restore the 2009 action to the active calendar. The 2009 action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one … . Since the 2009 action could not properly be marked off pursuant to CPLR 3404, the Bank was not required to move to restore within any specified time frame and was not obligated to demonstrate a reasonable excuse and a potentially meritorious claim … . Further, there was neither a 90-day notice pursuant to CPLR 3216 … , nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 … . Finally, [defendant] does not contend that the 2009 action was dismissed pursuant to CPLR 3215(c). Deutsche Bank Natl. Trust Co. v Gambino, 2020 NY Slip Op 01476, Second Dept 3-4-20

 

You might also like
THE PLAINTIFFS WERE ENTITLED TO A DECLARATORY JUDGMENT TO THE EFFECT THE VILLAGE WAS REQUIRED TO REPAIR A BULKHEAD/STORM DRAIN WHICH RAN THROUGH AN EASEMENT ON PLAINTIFFS’ PROPERTY; THE WOODEN BULKHEAD WHICH CRADLED THE DRAIN PIPE HAD DETERIORATED CAUSING SINK HOLES (SECOND DEPT).
Doctrine of Equitable Estoppel as Applied to Public Corporations Explained
Question of Fact Whether Three-Family Residence Was Owner-Occupied–Administrative Code’s Exemption from Liability for Failure to Remove Ice and Snow May Not Apply
BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT).
Choice of Law Analysis Re: Liability Insurance Contracts [Extraordinarily Complex Lawsuit Stemming from Mold Rendering a Newly-Constructed Apartment Complex Uninhabitable]
WAIVER OF APPEAL INVALID; ALREADY COMPLETED SENTENCE REDUCED BECAUSE OF THE IMMIGRATION CONSEQUENCES OF THE ORIGINAL SENTENCE; MATTER CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).
DEFENDANT DEMONSTRATED HE WAS UNLIKELY TO REOFFEND; THEREFORE, DESPITE THE SERIOUSNESS OF HIS SEX OFFENSES, HE WAS ENTITLED TO A REDUCTION OF HIS RISK LEVEL FROM THREE TO ONE (SECOND DEPT).
PLAINTIFF PROPERLY ALLOWED TO AMEND THE MEDICAL MALPRACTICE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAD RUN TO ADD A TREATING DOCTOR EMPLOYED BY A NAMED DEFENDANT PURSUANT TO THE RELATION-BACK DOCTRINE (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 APPARENTLY SLIPPED AND FELL BECAUSE OF LEAVES ON THE STAIRWAY; THE... PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION;...