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IN THIS FORECLOSURE ACTION PLAINTIFF’S ATTORNEY DID NOT FILE AN AFFIRMATION AS REQUIRED BY AN ADMINSTRATIVE ORDER; THE MAJORITY DID NOT ADDRESS THE ISSUE BECAUSE IT SHOULD HAVE BEEN RAISED IN A PRIOR APPEAL WHICH DEFENDANT DID NOT PERFECT; THE DISSENT ARGUED THE ISSUE COULD AND SHOULD BE CONSIDERED ON THIS APPEAL (THIRD DEPT).

The Third Department, over a dissent, determined defendant in this foreclosure action could not raise the plaintiff’s failure to comply with an Administrative Order (AO) because it could have been raised on a prior appeal which was not perfected. The dissent argued the court could and should address the “AO” issue on this appeal:

From the dissent:

… [A] plaintiff’s attorney is required to affirm after conferring with a representative of the plaintiff and upon the attorney’s “own inspection and other reasonable inquiry” that the pleadings and submissions “contain no false statements of fact or law.”  …

… [P]laintiff’s attorney was required to file the affidavit conforming with AO/431/11 and AO/208/13, an issue that was directly raised in defendant’s motion to vacate and could have been addressed by this Court had defendant perfected his appeal from the court’s April 2018 order. In an instance such as this, this Court “has the authority to entertain a second appeal in the exercise of [our] discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute” … . Given that the filing of an attorney affirmation is mandatory and, at the latest, must be filed five business days before a scheduled auction … , I believe we should exercise our discretion and address the issue of noncompliance (id.). To assure the integrity of the foreclosure process, which is the entire objective of the Administrative Orders, we should modify the order by requiring a continued stay of any auction sale pending the submission of a compliant attorney affirmation. HSBC Bank USA, N.A. v Sage, 2021 NY Slip Op 04583, Third Dept 7-29-21

 

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