You are here: / / THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY...
,

THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurrence and an extensive dissent, determined: (1) the order issued after a traverse hearing finding that defendant was not properly served in this foreclosure action was an appealable order pursuant to CPLR 5501 (c); (2) the order brings up for review the finding that a traverse hearing was necessary; and )3), defendants’ affidavit denying proper services was conclusory and, therefore, a traverse hearing was not required. The central issue in the decision is whether the order directing the traverse hearing had been brought for review by the order dismissing the complaint after the hearing:

… [O]ur jurisdiction is premised upon CPLR 5501(c), which directs that this Court “shall review questions of law and questions of fact on an appeal from a[n] . . . order of a court of original instance,” as well as the consistent line of cases from this Court holding that an appeal from an order granting a motion to dismiss based upon lack of personal jurisdiction—issued after a hearing—also brings up for review the issue of whether a hearing was necessary to determine the motion … . Since an order directing a hearing to aid in the determination of a motion holds the determination of the motion in abeyance, the subsequent order made after the hearing is “the proper order to appeal from” … . OneWest Bank FSB v Perla, 2021 NY Slip Op 07550, Second Dept 12-29-21

 

You might also like
THE ARBITRATION AWARD WAS INDEFINITE AND NONFINAL AND SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT).
No Need to Demonstrate Detrimental Reliance to Recover for Misconduct by Notary Public 
COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).
Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised
THE LABOR-LAW CONSTRUCTION-ACCIDENT ACTION WAS PRECLUDED BY THE RESULT OF THE PRIOR WORKERS’ COMPENSATION HEARING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL; THE MOTION TO AMEND THE ANSWER TO ADD THE COLLATERAL ESTOPPEL DEFENSE WAS PROPERLY GRANTED, EVEN THOUGH THE MOTION WAS MADE AFTER THE NOTE OF ISSUE WAS FILED (SECOND DEPT).
ALTHOUGH THE SUBCONTRACTOR HAD THE RIGHT FILE A SECOND MECHANIC’S LIEN, THE ACTION TO FORECLSOE ON THE LIEN RAISED THE SAME ISSUES THAT WERE RAISED IN A PRIOR BREACH OF CONTRACT AND UNJUST ENRICHMENT ACTION WHICH WAS DISMISSED, THE RES JUDICATA DOCTRINE PRECLUDED THE SECOND ACTION (SECOND DEPT).
EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (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

PLAINTIFF’S MOTION TO COMPEL THE DEFENDANT ESTATE TO HIRE AN ATTORNEY... THE JUDGE SHOULD NOT HAVE ACCEPTED A PARTIAL VERDICT WITHOUT INTERVIEWING THE...