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OKAY FOR BANK TO SUBMIT RENEWED POWER OF ATTORNEY IN REPLY PAPERS, POWER OF ATTORNEY SUBMITTED WITH MOTION PAPERS HAD APPARENTLY EXPIRED AND DEFENDANTS RAISED THE ISSUE IN ANSWERING PAPERS (SECOND DEPT).

The Second Department determined Supreme Court properly considered the submission of a renewed power of attorney in reply papers in this foreclosure proceeding. Apparently the power of attorney submitted with the bank’s motion papers had expired:

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Contrary to the appellants’ contention, the Supreme Court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants’ opposition to its motion. “The function of reply papers is to address arguments made in opposition to the position taken by the movant”… . Here, the renewed power of attorney submitted by the plaintiff was offered in response to the appellants’ argument made in opposition that the plaintiff’s affidavit of merit, signed by the assistant vice president of its servicing agent, was invalid because it was signed after the original power of attorney submitted by the plaintiff had expired. The renewed power of attorney merely clarified that the plaintiff’s servicing agent continued to have the authority to act on behalf of the plaintiff at the time the affidavit was signed … . Bank of N.Y. Mellon v Hoshmand, 2018 NY Slip Op 00818, Second Dept 2-7-18

CIVIL PROCEDURE (REPLY PAPERS, OKAY FOR BANK TO SUBMIT RENEWED POWER OF ATTORNEY IN REPLY PAPERS, POWER OF ATTORNEY SUBMITTED WITH MOTION PAPERS HAD APPARENTLY EXPIRED AND DEFENDANTS RAISED THE ISSUE IN ANSWERING PAPERS (SECOND DEPT))/REPLY PAPERS (CIVIL PROCEDURE, OKAY FOR BANK TO SUBMIT RENEWED POWER OF ATTORNEY IN REPLY PAPERS, POWER OF ATTORNEY SUBMITTED WITH MOTION PAPERS HAD APPARENTLY EXPIRED AND DEFENDANTS RAISED THE ISSUE IN ANSWERING PAPERS (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, REPLY PAPERS, OKAY FOR BANK TO SUBMIT RENEWED POWER OF ATTORNEY IN REPLY PAPERS, POWER OF ATTORNEY SUBMITTED WITH MOTION PAPERS HAD APPARENTLY EXPIRED AND DEFENDANTS RAISED THE ISSUE IN ANSWERING PAPERS (SECOND DEPT))

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Criteria for Prohibition Explained
PROOF OF MAILING OF THE RPAPL 1304 NOTICE TO THE CORRECT ADDRESS WAS NOT INCLUDED IN THE INITIAL MOTION PAPERS AND THEREFORE WAS NOT PART OF PLAINTIFF’S ATTEMPT TO MAKE OUT A PRIMA FACIE CASE; IN ADDTIION, THE PROOF OF MAILING OF THE RPAPL 1304 NOTICE WAS DEFICIENT (SECOND DEPT).
ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT). ​
ALTHOUGH THE RPAPL 1304 NOTICE OF FORECLOSURE COMPLIED WITH THE STATUTE WHEN IT WAS SENT, IT DID NOT COMPLY WITH THE VERSION OF THE STATUTE IN EFFECT WHEN THE ACTION WAS COMMENCED; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent—There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged
QUESTION OF FACT WHETHER DEFENDANT PROPERTY OWNER HAD NOTICE OF THE ALLEGED ELEVATOR MISALIGNMENT PROBLEM WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; SUPREME COURT REVERSED (SECOND DEPT).
CERTAIN DISCOVERY DEMANDS IN THIS NEGLIGENCE AND PUBLIC HEALTH LAW ACTION AGAINST A RESIDENTIAL CARE FACILITY ON BEHALF OF A FORMER RESIDENT SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).
MOTHER DID NOT HAVE STANDING TO BRING AN ACTION TO VACATE THE ADOPTION OF HER CHILD BY HER FORMER HUSBAND PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) BECAUSE THE ACT ONLY APPLIES TO CHILDREN REMOVED FROM A PARENT’S CUSTODY (SECOND DEPT).

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