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THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurrence and an extensive dissent, determined: (1) the order issued after a traverse hearing finding that defendant was not properly served in this foreclosure action was an appealable order pursuant to CPLR 5501 (c); (2) the order brings up for review the finding that a traverse hearing was necessary; and )3), defendants’ affidavit denying proper services was conclusory and, therefore, a traverse hearing was not required. The central issue in the decision is whether the order directing the traverse hearing had been brought for review by the order dismissing the complaint after the hearing:

… [O]ur jurisdiction is premised upon CPLR 5501(c), which directs that this Court “shall review questions of law and questions of fact on an appeal from a[n] . . . order of a court of original instance,” as well as the consistent line of cases from this Court holding that an appeal from an order granting a motion to dismiss based upon lack of personal jurisdiction—issued after a hearing—also brings up for review the issue of whether a hearing was necessary to determine the motion … . Since an order directing a hearing to aid in the determination of a motion holds the determination of the motion in abeyance, the subsequent order made after the hearing is “the proper order to appeal from” … . OneWest Bank FSB v Perla, 2021 NY Slip Op 07550, Second Dept 12-29-21

 

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THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​
PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT).
COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED.
PROTECTIVE ORDER DELAYING DISCOVERY UNTIL 45 DAYS BEFORE TRIAL GRANTED BY THE APPELLATE COURT (SECOND DEPT).
PLAINTIFF’S MOTION TO EXTEND THE TIME TO SERVE THE DEFENDANT PURSUANT TO CPLR 306-B SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE; IF A PLAINTIFF IS NOT ENTITLED TO EXTEND TIME FOR GOOD CAUSE, THE COURT SHOULD GO ON TO CONSIDER WHETHER THE MOTION SHOULD BE GRANTED IN THE INTEREST OF JUSTICE (SECOND DEPT).
THIS TENANT ACTION ALLEGING FRAUDULENT RENT OVERCHARGES AND VIOLATIONS OF THE NYC RENT STABILIZATION LAW AND CODE IS APPROPRIATE FOR A CLASS ACTION; THE MOTION FOR CERTIFICATION OF A CLASS ACTION SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).
DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT).
IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

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