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PLAINTIFF IN THIS STRICT FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR REFORECLOSURE UNDER RPAPL 1503; REFORECLOSURE IS AN OPTION WHEN THE ORIGINAL FORECLOSURE MAY BE VOID OR VOIDABLE AS AGAINST ANY PERSON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint in this strict foreclosure action to add a cause of action for reforeclosure under RPAPL 1503:

Section 1503 of the Real Property Actions and Proceedings Law establishes an action in reforeclosure where an original foreclosure judgment, sale, or conveyance may be void or voidable as against any person. The statute grants a purchaser the right to maintain an action “to determine the right of any person to set aside such judgment, sale or conveyance or to enforce an equity of redemption or to recover possession of the property, or the right of any junior mortgagee to foreclose a mortgage” (id.). “Such action may be maintained even though an action against the defendant to foreclose the mortgage under which the judgment, sale or conveyance was made, or to extinguish a right of redemption, would be barred by the statutes of limitation” … . Bank of N.Y. v Karistina Enters., LLC, 2022 NY Slip Op 05828, Second Dept 10-19-22

Practice Point: Reforeclosure under RPAPL 1503 may be available when the original mortgage is void or voidable as against any person.

 

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THE COURT NEVER ENTERED AN ORDER RE: DEFENDANT’S MOTION TO DISMISS; THEREFORE THE TIME FOR DEFENDANT TO INTERPOSE AN ANSWER IN THIS FORECLOSURE ACTION NEVER STARTED TO RUN (SECOND DEPT).
THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).
HOSPITAL NOT LIABLE FOR ACTS OF SURGEON WHO WAS NOT AN EMPLOYEE, ANALYTICAL CRITERIA OUTLINED.
HERE THE SUBPOENAS SEEKING DISCOVERY FROM A NONPARTY WERE DEFECTIVE IN THAT THEY DID NOT EXPLAIN THE CIRCUMSTANCES OR REASONS FOR THE REQUESTED DISCLOSURE; THEREFORE THE MOTION TO QUASH THE SUBPOENAS SHOULD HAVE BEEN GRANTED WITHOUT ANY NEED ON THE PART OF THE MOVANT TO DEMONSTRATE THE SOUGHT DISCLOSURE IS IRRELEVANT OR FUTILE (SECOND DEPT).
LACK OF SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF STUDENT’S FALL, PLAINTIFF WAS ENGAGING IN AGE-APPROPRIATE BEHAVIOR TAKING TURNS JUMPING OVER A KNEE-HIGH FENCE WHEN SHE FELL AND WAS INJURED, SCHOOL DISTRICT’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).
PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).
NEW YORK DOES NOT RECOGNIZE SPOLIATION OF EVIDENCE AS AN INDEPENDENT TORT, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
DEFENDANT DID NOT DEMONSTRATE HE DID NOT ENTER HIS GUILTY PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY; HIS MOTION TO WITHDRAW HIS PLEA WAS PROPERLY DENIED; STRONG DISSENT ARGUED DEFENDANT DEMONSTRATED AN INADQUATE OPPORTUNITY TO CONSULT WITH DEFENSE COUNSEL (SECOND DEPT).

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