You are here: / / TO, SUA SPONTE, DECIDE BRANCHES OF A MOTION AND CROSS-MOTION ON A GROUND...
, ,

TO, SUA SPONTE, DECIDE BRANCHES OF A MOTION AND CROSS-MOTION ON A GROUND NOT RAISED BY THE PARTIES DEPRIVED PLAIINTIFF OF THE OPPORTUNITY TO REFUTE THE JUDGE’S DETERMINATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the judge should not have decided branches of a motion and cross-motion on a ground not raised by the parties, i.e. “in the interest of justice” on the ground the action was commenced “when foreclosures were stayed due to [the[ Covid-19 pandemic:”

“The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … . As the plaintiff correctly contends, the Supreme Court improperly determined the subject branches of the parties’ motion and cross-motion on the ground that the action was commenced when “foreclosures were stayed due to [the] Covid-19 pandemic.” Sino [defendant] did not argue in support of the cross-motion that the plaintiff improperly commenced the action during any COVID-19-related stay or that it was prejudiced because the action was commenced during any COVID-19-related stay. Thus, the plaintiff was prejudiced, since it was “never afforded the opportunity to present evidence refuting the court’s sua sponte determination” … . Accordingly, the court should not have determined the subject branches of the motion and cross-motion on a ground that was never raised by the parties … . Austin 26 Dental Group, PLLC v Sino Northeast Metals (U.S.A.), Inc., 2024 NY Slip Op 04187, Second Dept 8-14-24

Practice Point: Judges cannot decide motions on a ground not raised by the parties.

 

You might also like
ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER.
THE JUDGE SHOULD NOT HAVE ACCEPTED A PARTIAL VERDICT WITHOUT INTERVIEWING THE JUROR WHO HAD INFORMED THE COURT SHE COULD NOT CONTINUE DELIBERATING BECAUSE SHE WAS SUFFERING ANXIETY ATTACKS; BECAUSE THE JUROR WAS NOT QUESTIONED, IT IS IMPOSSIBLE TO KNOW WHETHER THE PARTIAL VERDICT WAS REACHED BEFORE THE JUROR BECAME UNABLE TO CONTINUE (SECOND DEPT).
PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 OR THE MORTGAGE (SECOND DEPT).
MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).
Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed
DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO RECORD PLAINTIFF IN A CHANGING ROOM; THE NEGLIGENT HIRING CAUSE OF ACTION, BASED ON THE ALLEGATION THE STORE DID NOT CONDUCT A BACKGROUND CHECK BEFORE HIRING THE EMPLOYEE, SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​
THE CITY’S STUDIES OF THE INTERSECTION WHERE INFANT PLAINTIFF WAS STRUCK BY A CAR WERE DONE IN THE SUMMER WHEN NO SCHOOL CHILDREN USED THE INTERSECTION, THEREFORE THE CITY WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DOCTRINE OF QUALIFIED IMMUNITY, THE STUDIES HAD CONCLUDED NO TRAFFIC CONTROL DEVICE WAS NECESSARY, SUPREME COURT REVERSED (SECOND DEPT).
FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES, CRITERIA EXPLAINED.

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

HERE TWO DISSENTERS ARGUED THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS THAT... HERE THE RIGHT OF FIRST REFUSAL IN THE ORIGINAL DEED DIVIDING THE PROPERTY INTO...