You are here: / / FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER...
, ,

FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER DEEMED A WAIVER OF THE DEFENSE; DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend her answer to add the lack of standing defense. Pursuant to RPAPL 1302-a the failure to include the lack of standing defense in the answer is no longer deemed waiver of the defense:

… [T]he defendant did not waive the affirmative defense of lack of standing. RPAPL 1302-a … provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.” Under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s cross motion which was pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defense of lack of standing … . Further, the defendant’s affidavit was sufficient to raise a triable issue of fact as to whether the plaintiff was the holder or assignee of the note at the time the action was commenced … . In response, the plaintiff failed to demonstrate its standing as a matter of law … . US Bank N.A. v Blake-Hovanec, 2021 NY Slip Op 00893, Second Department 2-10-21

 

You might also like
FATHER’S ABUSE AND NEGLECT OF ONE CHILD, HANNAH D, SUPPORTED THE FINDING FATHER DERIVATIVELY ABUSED TWO OTHER CHILDREN, EVEN THOUGH ONE WAS AN INFANT AND THE OTHER HAD NOT BEEN BORN AT THE TIME OF THE ABUSE OF HANNAH D (SECOND DEPT).
ARTICLE 78 PETITION WAS NOT SERVED UPON A PERSON AUTHORIZED TO RECEIVE SERVICE ON BEHALF OF THE NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ALTHOUGH THE PROCESS SERVER ALLEGED THE PETITION WAS DELIVERED TO AN ATTORNEY AT THE DEP WHO SAID SHE WAS AUTHORIZED TO RECEIVE SERVICE, THE DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY (SECOND DEPT).
THE NOTICES OF CLAIM NOTIFIED THE MUNICIPAL DEFENDANTS ONLY OF THE DAMAGES RELATING TO PLAINTIFF’S DECEDENT, PLAINTIFF’S MOTHER’S MOTION TO AMEND THE COMPLAINT TO ADD HER DERIVATIVE CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).
ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).
IT WAS A PROPER EXERCISE OF DISCRETION TO EXTEND THE DEADLINE FOR THE FORECLOSURE SALE DUE TO THE COVID PANDEMIC; HOWEVER IT WAS AN ABUSE OF DISCRETION TO DENY THE MOTION TO TOLL THE ACCRUAL OF INTEREST DURING THE DELAY (SECOND DEPT).
“Notwithstanding Clause” in Contract Insulated Town from Liability for Bond Payments Re: a Waste Disposal Facility
CONCLUSORY AND SPECULATIVE ALLEGATIONS WILL NOT SUPPORT PIERCING THE CORPORATE VEIL (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

CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY... THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE...