You are here: / / THE DEFENDANTS DEFAULTED IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT...
, , ,

THE DEFENDANTS DEFAULTED IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BASED ON THE BANK’S ALLEGED FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, WHICH IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE RAISED AS A DEFENSE (SECOND DEPT).

The Second Department determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action on the ground the bank did not comply with the notice requirements of RPAL 1304. The defendants defaulted and failure to comply with RPAPL 1304 is not a jurisdictional defect. Therefore it must be raised as a defense before a judge can rule on it:

In this action to foreclose a mortgage, in which the defendants failed to appear or answer the complaint, the Supreme Court should have granted the plaintiff’s motion for leave to enter a default judgment and for an order of reference, and should not have, sua sponte, directed dismissal of the complaint based on its determination that the plaintiff failed to establish that it complied with RPAPL 1304 … . Therefore, a plaintiff is not required to disprove the defense unless it is raised by defendants, and in this case the defendants failed to appear in the action or answer the complaint … . Chase Home Fin., LLC v Guido, 2020 NY Slip Op 07854, Second Dept 12-23-20

 

You might also like
Defendant Alleged a Possible Defense to His Failure to Comply with an Order that He Pay Temporary Maintenance and Child Support (Inability to Work Due to Medical Problems)—Hearing Was Required Before a Civil Contempt Finding Could Be Made
PLAINTIFF AND DEFENDANTS ARE NEIGHBORS; PRIVATE NUISANCE CAUSES OF ACTION BASED UPON DEFENDANTS’ YEARLY FIREWORKS DISPLAYS AND EXCESSIVE NOISE FROM POOL EQUIPMENT SHOULD NOT HAVE BEEN DISMISSED; A TRESPASS CAUSE OF ACTION BASED UPON DEBRIS FROM THE FIREWORKS FALLING ON PLAINTIFF’S PROPERTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​
JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT).
PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).
THE DISMISSAL OF THE COMPLAINT DID NOT NULLIFY THE COUNTERCLAIMS (SECOND DEPT).
THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).
BY THE TERMS OF THE MANAGING AGENT’S CONTRACT WITH THE COOPERATIVE, THE MANAGING AGENT DID NOT FULLY ASSUME THE DUTY TO MAINTAIN THE COOPERATIVE PREMISES SUCH THAT THE AGENT WOULD BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON THE PREMISES; THE MANAGING AGENT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
PLAINTIFF WAS A SPECIAL EMPLOYEE OF OWNER OF THE PROPERTY ON WHICH PLAINTIFF WAS INJURED, PLAINTIFF’S RECOVERY RESTRICTED TO WORKERS’ COMPENSATION BENEFITS (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

ATTEMPTED SECOND DEGREE MURDER COUNT MUST BE DISMISSED AS AN INCLUSORY CONCURRENT... THE BANKS’ COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS NOT...