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
TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).
LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).
EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS PROPERLY CONSIDERED.
PLAINTIFF WAS NOT HIRED BECAUSE HE TESTED POSITIVE FOR MARIJUANA WHEN HE WAS UNDER TREATMENT WITH MARIJUANA; THAT STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION (SECOND DEPT). ​
APPELLANT AND ATTORNEY SANCTIONED FOR BRINGING MERITLESS APPEAL (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE MOTHER’S PARENTAL ACCESS; THE JUDGE LEFT IT TO MOTHER AND HER CHILD TO DETERMINE MOTHER’S PARENTAL ACCESS (SECOND DEPT).
IN THIS REAR-END TRAFFIC ACCIDENT CASE, WHERE PLAINTIFF WAS AN INNOCENT PASSENGER, DEFENDANTS’ FAILURE-TO-STATE-A-CAUSE-OF-ACTION AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN STRUCK BECAUSE THE MOTION TO STRIKE AMOUNTED TO TESTING THE SUFFICIENCY OF PLAINTIFF’S OWN CLAIM (SECOND DEPT).
No Ambiguity in Contract; No Resort to Extrinsic Evidence

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...