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PLAINTIFF’S FAILURE TO MEET THE COURT’S FILING DEADLINE WAS NOT A SUFFICIENT REASON FOR SUA SPONTE DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure case did not have sufficient cause to dismiss the complaint sua sponte (another reminder that sua sponte dismissals of complaints rarely survive appeal);

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . “[A] court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court” … . “To obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if that motion to vacate is denied” … .

Here, the Supreme Court erred in denying the plaintiff’s motion to vacate the … order and to restore the action to the court’s active calendar, as the plaintiff’s failure to comply with the directive to file an application for a judgment of foreclosure and sale by July 26, 2017, was not a sufficient ground upon which to sua sponte direct dismissal of the complaint … . James B. Nutter & Co. v Heirs & distributees of the estate of Rose Middleton, 2024 NY Slip Op 03472, Second Dept 6-26-24

Practice Point; Failure to meet a filing deadline set by the court was not an adequate reason for the judge’s sua sponte dismissal of the foreclosure complaint.

 

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THE ALLEGED INTENTIONAL ACT OF THROWING A HAND TRUCK AT A BUS INJURING PLAINTIFF-PASSENGER DID NOT SUPPORT NEGLIGENCE OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION, BUT DID SUPPORT AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION (SECOND DEPT).
PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO FORECLOSE ON THE REVERSE MORTGAGE WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).
CORRESPONDENCE ESTABLISHED AN ENFORCEABLE SETTLEMENT AGREEMENT.
THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).
THE PROCESS SERVER KNEW WHERE DEFENDANT LIVED AND WORKED AND MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO SERVE DEFENDANT AT HOME; WITHOUT MAKING ANY ATTEMPT TO SERVE DEFENDANT AT WORK, THE PROCESS SERVER RESORTED TO “NAIL AND MAIL;” THE PROCESS SERVER DID NOT DEMONTRATE “DUE DILIGENCE;” THE COURT NEVER ACQUIRED PERSONAL JURISDICTION OVER DEFENDANT IN THIS FORECLOSURE ACTION (SECOND DEPT).
PLAINTIFF WAS STOPPED WHEN PLAINTIFF WAS REAR-ENDED BY DEFENDANT; BECAUSE DEFENDANT DID NOT OFFER A NONNEGLIGENT EXPLANATION, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; HOWEVER PLAINTIFF MAY HAVE BEEN STOPPED ON AN ENTRANCE RAMP; THEREFORE DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE PROPERLY SURVIVED DISMSSAL (SECOND DEPT).
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