You are here: / / FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR...
,

FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL.

The Second Department determined false information in the attorney affidavit submitted by the plaintiff bank warranted denial of the motion for a judgment of foreclosure, but did not warrant dismissal of the complaint with prejudice and cancellation of the notice of pendency:

The Administrative Order requires the attorney to attest that the papers “contain no false statements of fact or law” (Administrative Order 548/10). A plaintiff’s failure to file the mandatory attorney affirmation in compliance with the Administrative Order warrants denial of a motion for a judgment of foreclosure and sale … . Here, since the subject affirmation contained an apparently false statement of fact, the Supreme Court providently exercised its discretion in denying the motion for a judgment of foreclosure and sale without prejudice to renew (see CPLR 2001).

However, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint with prejudice and in directing the cancellation of the notice of pendency. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances … . Downey Sav. & Loan Assn., F.A. v Trujillo, 2016 NY Slip Op 06058, 2nd Dept  9-21-16

 

FORECLOSURE (FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL)/ATTORNEYS (FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL)

You might also like
THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE BREACH OF CONTRACT CAUSE OF ACTION WAS TIME-BARRED (SECOND DEPT).
JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS’ MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).
IN A SLIP AND FALL CASE, TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, THE DEFENDANT MUST PROVE THE AREA OF THE SLIP AND FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE INCIDENT; PROOF OF GENERAL CLEANING OR INSPECTION PRACTICES IS NOT ENOUGH; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
SUPREME COURT HAD THE POWER TO APPOINT THE PUBLIC ADMINISTRATOR TO REPRESENT THE ESTATE IN THIS TRAFFIC ACCIDENT CASE; DEFENSE COUNSEL REPRESENTED THE INSURER, NOT THE DEFENDANT ESTATE (SECOND DEPT).
DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
Re: the Unsealing of the Grand Jury Proceedings Concerning Eric Garner’s Death at the Hands of the Police, a “Compelling and Particularized Need” for Disclosure Had Not Been Demonstrated—the Public Interest in Preserving Grand Jury Secrecy Outweighed the Public Interest in Disclosure
FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER DEEMED A WAIVER OF THE DEFENSE; DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER (SECOND DEPT). ​
THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (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

COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER... AMENDMENT TO STATUTE CHANGING THE LIMITATIONS PERIOD FOR ACTION ON A PAYMENT...