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DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT).

The Second Department noted that a defendant who has not yet served an answer cannot move for summary judgment:

A motion for summary judgment may only be made after joinder of issue (see CPLR 3212[a]). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was not joined and the defendant was precluded from obtaining summary judgment … . The requirement that a motion for summary judgment may not be made before issue is joined (see CPLR 3212[a]) “is strictly adhered to” … . Cremosa Food Co., LLC v Amella, 2018 NY Slip Op 06077, Second Dept 9-19-18

CIVIL PROCEDURE (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/CPLR 3212 (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, (DEFENDANT COULD NOT BRING A SUMMARY JUDGMENT MOTION BEFORE ISSUE WAS JOINED BY SERVICE OF AN ANSWER (SECOND DEPT))

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PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that a party who has been granted a preliminary injunction must give an undertaking, although the amount is within the court’s discretion:

The plaintiff commenced this action for specific performance of a contract for the sale of certain real property in Queens. The plaintiff moved for a preliminary injunction, inter alia, restraining the defendants from selling, transferring, or encumbering the subject property. In an order entered March 17, 2015, the Supreme Court granted the plaintiff’s motion for a preliminary injunction. In the order appealed from, the court determined that an undertaking was not required. The defendants appeal.

“[U]pon the granting of a preliminary injunction, a plaintiff shall give an undertaking in an amount to be fixed by the court'” (…CPLR 6312[b]). Thus, “[w]hile fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312(b) clearly and unequivocally requires the party seeking an injunction to give an undertaking” … . Chao-Yu C. Huang v Shih, 2018 NY Slip Op 06075, Second Dept 9-19-18

CIVIL PROCEDURE (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/CPLR 6321 (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/UNDERTAKING (CIVIL PROCEDURE, PRELIMINARY INJUNCTION, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/PRELIMINARY INJUNCTION  (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/INJUNCTION, PRELIMINARY (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/CONTRACT LAW (SPECIFIC PERFORMANCE, UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/REAL PROPERTY LAW (SPECIFIC PERFORMANCE, UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))

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CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT).

The Second Department determined petitioner's challenge to the city water bills was properly deemed time-barred. Petitioner argued that the city should be estopped from taking advantage of the four-year statute because of a delay in correcting an inaccurate bill:

The petitioner's contention that DEP and the Water Board should be estopped from applying the four-year limitations period is without merit. ” The doctrine of estoppel will be applied against governmental agencies only in exceptional cases'” … , such as where there is fraud, misrepresentation, or other affirmative misconduct upon which the other party relies to its detriment… . “Generally, the doctrine of estoppel is not available against a governmental agency to prevent it from discharging its statutory duties, even when the results are harsh” … . Here, the Water Board was performing its statutory duties in, inter alia, establishing, charging, collecting, and enforcing payment for the use of the water and sewer systems (see Public Authorities Law § 1045-f[9]). Although an error had been made resulting in the petitioner being over-billed from June 2000 to April 2015, DEP corrected the error and credited the accounts of the 10 subject properties to the extent allowable under applicable law and the Water Board's rate schedule …. The petitioner failed to demonstrate any improper conduct on the part of DEP or the Water Board that would warrant the application of the doctrine of estoppel. Matter of Maimonides Med. Ctr. v New York City Water Dept., 2018 NY Slip Op 06094, Second Dept 9-19-18

MUNICIPAL LAW (CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/ESTOPPEL (MUNICIPAL LAW, CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))/WATER BILLS (CIVIL PROCEDURE, ESTOPPEL, CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT))

RELATION BACK DOCTRINE SHOULD HAVE BEEN APPLIED IN THE LABOR LAW 200 AND 241 (6) ACTION TO ALLOW PLAINTIFF TO ADD A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation-back doctrine should have been applied to allow plaintiff to add a party to the Labor Law 200 and 241 (6) complaint after the statute of limitations had run:

On October 15, 2007, the plaintiff, a construction worker, allegedly was injured while performing demolition work on the roof of a condominium building in Brooklyn. In December 2008, the plaintiff commenced this action against A.T.A. Construction Corp. (hereinafter A.T.A.), the general contractor for the construction project, and Park Slope Condominium (hereinafter Park Slope), the alleged owner of the subject building. The complaint asserted causes of action sounding in common-law negligence and violations of Labor Law §§ 200 and 241(6).

In June 2014, after the expiration of the statute of limitations, the plaintiff cross-moved for leave to amend his complaint to add Flan Realty, LLC (hereinafter Flan), as a defendant in the action. * * *

…[T]he claims against Flan arise out of the same conduct, transaction, or occurrence as the claims asserted against Park Slope. In addition, the plaintiff demonstrated that, under the particular circumstances presented, Park Slope and Flan are united in interest inasmuch as the two entities, “intentionally or not, often blurred the distinction between them” … . Moreover, Flan had notice of this action within the applicable limitations period, inasmuch as the Flancraichs jointly operated both Park Slope and Flan, and Flan was designated in the condominium declaration to receive service of process on behalf of Park Slope … .Finally, the plaintiff demonstrated that the initial failure to add Flan was not intentional, but was the result of an excusable mistake … . Uddin v A.T.A. Constr. Corp., 2018 NY Slip Op 06135, Second Dept 9-19-18

CIVIL PROCEDURE (RELATION BACK DOCTRINE SHOULD HAVE BEEN APPLIED IN THE LABOR LAW 200 AND 241 (6) ACTION TO ALLOW PLAINTIFF TO ADD A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT))/RELATION BACK DOCTRINE  (RELATION BACK DOCTRINE SHOULD HAVE BEEN APPLIED IN THE LABOR LAW 200 AND 241 (6) ACTION TO ALLOW PLAINTIFF TO ADD A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT))

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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department determined that a stipulation of settlement was properly enforced because the attorney had the apparent authority to sign the stipulation on the client’s behalf:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered” (CPLR 2104). A stipulation of settlement signed by an attorney may bind his or her client even if it exceeds the attorney’s actual authority if the attorney had apparent authority to act on his or her client’s behalf … . Here, the plaintiff is bound by the stipulation of settlement signed by her former attorney, as the record supports the finding that even if the attorney lacked actual authority to enter into the stipulation of settlement on the plaintiff’s behalf, he had apparent authority to do so (see CPLR 2104 …). Anghel v Utica Mut. Ins. Co., 2018 NY Slip Op 06073, Second Dept 9-19-18

CIVIL PROCEDURE (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CONTRACT LAW (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/ATTORNEYS (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/AGENCY (ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT)/STIPULATION (ATTORNEYS, AGENCY, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/APPARENT AUTHORITY (AGENCY, ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CPLR 2104 (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))

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STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, in this foreclosure action, noted that the statute limitations defense is waived if not raised in an answer or a pre-answer motion to dismiss:

In July 2014, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Anthony Palazzotto. Palazzotto defaulted in answering or appearing, and the plaintiff moved for leave to enter a default judgment and for an order of reference. Palazzotto opposed the motion, and cross-moved to dismiss the complaint insofar as asserted against him as time-barred … . He argued that the debt was accelerated in 2008, when a prior action was commenced to foreclose the same mortgage. The Supreme Court denied the plaintiff's motion, and granted Palazzotto's cross motion. …

The plaintiff demonstrated its entitlement to a default judgment and an order of reference by submitting proof of service of a copy of the summons and complaint, proof of the facts constituting the causes of action, including that the defendant defaulted on his payment obligations, and proof that neither he nor any of the other defendants had otherwise appeared or answered the complaint within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]…).

Palazzotto waived a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss (see CPLR 3211[a][5]…). 21st Mtge. Corp. v Palazzotto, 2018 NY Slip Op 06072, Second Dept 9-19-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT))

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SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:

“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .

Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met, [t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/ATTORNEYS  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/LAW OFFICE FAILURE  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/BILL OF PARTICULARS (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))

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CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the law-office-failure offered as an excuse for failure to comply with a conditional order in this foreclosure action was not sufficient to justify vacating the dismissal of the action:

To vacate the dismissal, HSBC was required to demonstrate a justifiable excuse for the noncompliance with the conditional order of dismissal and the existence of a potentially meritorious cause of action (see CPLR 3216… ). Here, the proffered excuse of law office failure by prior counsel in failing to timely file a note of issue or move for entry of judgment was conclusory and wholly unsubstantiated (see CPLR 2005…). HSBC did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure. Therefore, the allegation of law office failure did not rise to the level of a reasonable excuse … . Fremont Inv. & Loan v Fausta, 2018 NY Slip Op 06084, Second Dept 9-19-18

CIVIL PROCEDURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 3216 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE  (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))

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SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT’S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT).

The Second Department determined defendant juvenile offender could not move to suppress his presentence report in subsequent Department of Homeland Security proceedings:

The defendant, an immigrant from Bangladesh, was adjudicated a youthful offender. After completing his sentence, the defendant was detained by the United States Department of Homeland Security (hereinafter the DHS), which, in reliance on the defendant's presentence report, argued that the defendant should be denied a bond due to his youthful offender adjudication. Thereafter, the defendant moved before the Supreme Court in the subject criminal proceeding pursuant to CPLR 3103 for a protective order “enjoining the [DHS's] use” of his presentence report, arguing that it is a confidential record under CPL 720.35(2), which the DHS had improperly obtained. In an order dated June 6, 2017, the Supreme Court denied the defendant's motion. The defendant appeals.

CPLR 3103 ” confers broad discretion upon a court to fashion appropriate remedies' to prevent the abuse of disclosure devices” … . Pursuant to CPLR 3103(c), “[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed” … . Here, since the DHS did not obtain the presentence report in the course of any disclosure process under CPLR Article 31, there is no basis for the issuance of a protective order pursuant to CPLR 3103(c). Moreover, since “[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere” … , the Supreme Court lacked the power to suppress the presentence report in immigration proceedings. People v Saqline K., 2018 NY Slip Op 06115, Second Dept 9-19-18

CRIMINAL LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/IMMIGRATION LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/EVIDENCE (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))CIVIL PROCEDURE (IMMIGRATION LAW, (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))PRESENTENCE REPORT (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))

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LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff's motion to vacate the dismissal of a foreclosure action was properly denied. Plaintiff failed to appear at a scheduled court conference and the law-office-failure excuse was deemed inadequate:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a][1]… ). The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court … . The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default… .

Here, the plaintiff's bare allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default … . Moreover, the plaintiff failed to provide a reasonable excuse for its lengthy delay in moving to vacate the order of dismissal … . Option One Mtge. Corp. v Rose, 2018 NY Slip Op 06023, Second Dept 9-12-18

CIVIL PROCEDURE (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE (CIVIL PROCEDURE, LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS  (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))

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