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IN THIS FORECLOSURE ACTION, DEFENDANT DID NOT WAIVE THE LACK OF JURISDICTION DEFENSE BY PARTICIPATING IN THE MANDATORY SETTLEMENT CONFERENCE AND WAS ENTITLED TO A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action did not waive the lack of jurisdiction defense and demonstrated entitlement to a hearing on whether she was properly served:

… [B]y participating in the mandatory settlement foreclosure conference and subsequently contacting the plaintiff for settlement purposes, the defendant did not demonstrate a clear intent to participate in the lawsuit on the merits, and therefore she did not formally or informally appear in the action … . …

… [D]efendant sufficiently rebutted the presumption of proper service. The defendant submitted her own sufficiently factually detailed sworn affidavit in which she, inter alia, denied receipt of service, denied residing at the subject address at the time service allegedly was made, and averred that she had not lived there since September 2011 and that she had moved to Georgia in November 2013. Under these circumstances, a hearing to determine whether the defendant was properly served pursuant to CPLR 308(2) was required … . Nationstar Mtge., LLC v Stroman, 2022 NY Slip Op 00869, Second Dept 2-9-22

 

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NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT RULED THE MAXIMUM COLLECTIBLE RENT FOR AN APARTMENT WAS $125 PER MONTH, THE RENT HAD REMAINED LOW FOR DECADES BECAUSE THE APARTMENT HOUSE HAD BEEN OWNED AND RESIDED IN BY FAMILY MEMBERS (SECOND DEPT).
THE ARBITRATOR’S AWARD, REINSTATING NURSING HOME EMPLOYEES WHO WERE FIRED AND INDICTED FOR ALLEGEDLY IGNORING A RESIDENT IN RESPIRATORY DISTRESS, VIOLATED PUBLIC POLICY (SECOND DEPT).
PLAINTIFF SUED DEFENDANT ATTORNEYS ALLEGING INACCURATE ADVICE CAUSED HER TO FILE FOR BANKRUPTCY, BECAUSE THE LEGAL MALPRACTICE ACTION ACCRUED WHEN PLAINTIFF FILED FOR BANKRUPTCY, THE LAWSUIT BECAME PART OF THE BANKRUPTCY ESTATE AND PLAINTIFF WAS THEREBY STRIPPED OF THE CAPACITY TO SUE (SECOND DEPT).
DEFENDANT PROPERTY OWNER’S ACKNOWLEDGED AWARENESS OF THE SIDEWALK DEFECT IN THIS TRIP AND FALL CASE PRECLUDED SUMMARY JUDGMENT.
DEFENDANT WAS HOUSED HOURS AWAY FROM HIS BROOKLYN ATTORNEY AND ATTEMPTS TO MOVE DEFENDANT TO NEW YORK CITY WERE UNSUCCESSFUL; UNDER THE CIRCUMSTANCES, DEFENDANT WAS DENIED HIS RIGHT TO CONSULT WITH HIS ATTORNEY BEFORE ENTERING A GUILTY PLEA; THE MOTION TO VACATE THE PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).
WHETHER A DELAY IN DIAGNOSIS AFFECTED PLAINTIFF’S PROGNOSIS IS USUALLY A JURY QUESTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
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