You are here: / / DEFENDANT’S ATTORNEY’S AFFIRMATION STATING HE NEVER RECEIVED...
,

DEFENDANT’S ATTORNEY’S AFFIRMATION STATING HE NEVER RECEIVED THE PLAINTIFF’S SUMMARY JUDGMENT MOTION WAS NOT REBUTTED BY PLAINTIFF; THE COURT NEVER HAD JURISDICTION OVER THE MOTION AND THE RESULTING JUDGMENT WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s (White’s) attorney’s affirmation stating he never received the bank’s summary judgment motion for a judgment of foreclosure deprived to court of jurisdiction and rendered the judgment a nullity:

“The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … . White’s opposition to the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale included his attorney’s affirmation, wherein his attorney stated that the attorney never received the summary judgment motion. In reply, the plaintiff did not submit an affidavit of service or other proof of service demonstrating that the summary judgment motion had been served on White’s counsel. The plaintiff’s assertions are insufficient to raise a presumption that White was served with the summary judgment motion … . At the time White’s attorney brought to the Supreme Court’s attention that the attorney had not received the motion for summary judgment and, in response, the plaintiff failed to submit any proof of service of the motion, the court was presented with evidence that the order … , was a nullity … . Under such circumstances, there was never a default in opposing the motion for summary judgment, and thus, there was no need for White to demonstrate a reasonable excuse or a potentially meritorious opposition to the motion … . Accordingly, the Supreme Court should have denied the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale and vacated so much of the order … as granted the summary judgment motion … . MTGLQ Invs., L.P. v White, 2020 NY Slip Op 00269, Second Dept 1-17-20

 

You might also like
THE EXTENSION OF THE STATUTE OF LIMITATIONS IN CPLR 213-B(1) WHICH ALLOWS A VICTIM OF A CRIME TO SUE THE PERPETRATOR WITHIN SEVEN YEARS OF THE DATE OF CRIME APPLIES ONLY WHERE THE PERPETRATOR HAS BEEN “CONVICTED OF [THE] CRIME;” A PERPETRATOR WHO HAS BEEN ADJUDICATED A YOUTHFUL OFFENDER HAS NOT BEEN “CONVICTED OF A CRIME” WITHIN THE MEANING OF CPLR 213-B(1) (SECOND DEPT).
QUESTIONS OF FACT WHETHER THE “LAUNCH AN INSTRUMENT OF HARM” ESPINAL EXCEPTION APPLIED TO A CONTRACTOR AND WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).
CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).
EXTENSION OF TIME TO FILE NOTICE OF APPEARANCE RE: A CLAIM FOR DAMAGES FOR THE ACQUISITION OF REAL PROPERTY BY THE VILLAGE PROPERLY GRANTED, CRITERIA EXPLAINED.
SECOND PURCHASER OF REAL PROPERTY DEMONSTRATED HE WAS A BONA FIDE PURCHASER WITHOUT NOTICE OF THE PLAINTIFF’S PRIOR PURCHASE CONTRACT, PLAINTIFF’S FILING OF A NOTICE OF PENDENCY DID NOT SERVE AS A SUBSTITUTE FOR RECORDING OF THE CONTRACT (SECOND DEPT).
THE RIGHT TO SEEK REMOVAL OF A CLOUD ON TITLE IS NEVER BARRED BY A STATUTE OF LIMITATIONS (SECOND DEPT).
Arbitration Award Based Upon Collective Bargaining Agreement Does Not Have a Preclusive Effect Upon a Subsequent Employment Discrimination Action Based on the Same Facts
PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

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

THE PLAINTIFF BANK DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE... MOTHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER SHOULD NOT HAVE...