You are here: / / ALTHOUGH THE FORECLOSURE CAUSE OF ACTION WAS DISMISSED AFTER TRIAL BECAUSE...
, ,

ALTHOUGH THE FORECLOSURE CAUSE OF ACTION WAS DISMISSED AFTER TRIAL BECAUSE THE BANK FAILED TO PROVE STANDING AND COMPLIANCE WITH RPAPL 1304, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, CANCELLED AND DISCHARGED THE MORTGAGE, RELIEF DEFENDANT HAD NOT REQUESTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the judge did not have the power to sua sponte cancel and discharge the mortgage. After trial, the foreclosure cause of action was dismissed because the bank failed to demonstrate standing to foreclose and failed to demonstrate compliance with RPAPL 1304:

The Supreme Court erred in, sua sponte, directing the cancellation and discharge of record the mortgage. The court may grant relief warranted pursuant to a general prayer for relief “if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, in his answer, the defendant sought, among other things, dismissal of the complaint insofar as asserted against him but did not seek cancellation and discharge of record the mortgage. Thus, the court’s sua sponte directive to cancel and discharge of record the mortgage was dramatically unlike the relief requested … . Moreover, the proof adduced at trial did not support the relief granted … , and the plaintiff was prejudiced, since it was not afforded an opportunity to be heard on the issue of the propriety of the relief granted, which deprived it of its security interest in the premises … . Bank of Am., N.A. v Amigon, 2025 NY Slip Op 04536, Second Dept 8-6-25

Practice Point: Here, although the foreclosure cause of action was dismissed on defendant’s motion after trial, the judge did not have the authority to cancel and discharge the mortgage, relief that was not requested by the defendant.

 

You might also like
[Harmless] Error to Deny Defense a Hearing to Determine Admissibility of Testimony of Private Investigator About What Could Be Seen from a Certain Vantage Point (Calling Into Question Testimony Identifying the Defendant)
IN THIS “BAR FIGHT” “INADEQUATE SECURITY” ACTION, THE DEFENDANT BAR HAD TIMELY SUED ITS SECURITY COMPANY AS A THIRD-PARTY DEFENDANT; AFTER THE STATUTE OF LIMITATIONS EXPIRED, PLAINTIFF SOUGHT TO SUE THE SECURITY COMPANY DIRECTLY UNDER A “RELATION BACK” THEORY; PLAINTIFF’S MOTION TO SERVE AND FILE AN AMENDED COMPLAINT AGAINST THE SECURITY COMPANY DIRECTLY SHOULD HAVE BEEN GRANTED (SECOND DEPT).
QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.
THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). ​
NEW AUDI DEALERSHIP WAS OUTSIDE PLAINTIFF DEALERSHIP’S MARKET AREA, SUIT UNDER THE DEALER ACT PROPERLY DISMISSED.
Duty to Defend Broader than Duty to Indemnify.
THE INCLUSION OF ADDITIONAL INFORMATION IN THE ENVELOPE CONTAINING THE RPAPL 1304 90-DAY NOTICE OF FORECLOSURE DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).
IN THIS EMPLOYEE-EMPLOYER DISPUTE ABOUT A HEALTH INSURANCE PREMIUM CONTRIBUTION, THE CONTINUING WRONG DOCTRINE DID NOT APPLY TO TOLL THE STATUTE OF LIMITATIONS, EACH PAYCHECK WITH THE PREMIUM DEDUCTION WAS NOT AN INDEPENDENT WRONG (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

HERE THE “SOPHISTICATED PARTIES” TO THE COMMERCIAL LEASE PROPERLY... A FOREIGN DEFAULT JUDGMENT MAY BE ACCORDED FULL FAITH AND CREDIT IN NEW YORK...