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THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT).

The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege):

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege … . To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party… . “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” … . Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” … . Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Second Dept 1-24-18

CIVIL PROCEDURE (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (HE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))/ATTORNEY-CLIENT PRIVILEGE (COMMON INTEREST, THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT))

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PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for a preliminary injunction was properly denied, but Supreme Court should not have dismissed the complaint sua sponte. The underlying action sought a declaratory judgment that plaintiff was the owner of shares of stock allocated to a cooperative apartment. The plaintiff moved for a preliminary injunction in the pending holdover proceeding:

To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (see CPLR 6301…). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” … . Here, the plaintiff did not sustain his burden of establishing a likelihood of success on the merits.

However, inasmuch as there was neither notice to the parties by the Supreme Court nor an application by the defendant seeking dismissal, it was error for the court to, sua sponte, direct the dismissal of the complaint in this action … . Gonzalez v 231 Maujer St., HDFC, 2018 NY Slip Op 00412, Second Dept 1-24-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT).

The Second Department determined Supreme Court properly allowed plaintiff to extend the time to serve the summons and complaint. The initial service was timely but defective. In the mean time, the statute of limitations had run:

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” … . “An extension of time for service is a matter within the court’s discretion” … . Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action… . Moreover, there was no prejudice to the defendant attributable to the delay in service … . Chan v Zoubarev, 2018 NY Slip Op 00402, Second Dept 1-24-18

CIVIL PROCEDURE (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/SERVICE OF PROCESS (EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/STATUTE OF LIMITATIONS (SERVICE OF PROCESS, EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/CPLR 306-b (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))

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BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department determined the bank’s motion for leave to enter a default judgment in this foreclosure proceeding was properly denied because the motion relied on documents verified and affirmed by counsel and an affidavit by a person with no first-hand knowledge of the facts asserted. The Second Department noted that the bank’s motion to amend the caption, by substituting named parties for “John Does” should have been granted and the complaint should not have been dismissed sua sponte:

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… [T]he plaintiff failed to submit the requisite proof of the facts constituting the claim …  “While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge”… . ” [A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'”… . On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed. First Franklin Fin. Corp. v Alfau, 2018 NY Slip Op 00409, Second Dept 1-24-18

FORECLOSURE (BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/EVIDENCE (FORECLOSURE, DEFAULT JUDGMENT, ANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (FORECLOSURE, DISMISSA OF COMPLAINT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, EVIDENCE, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

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ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT).

The Second Department determined the motion court properly merged three lots into one after the foreclosure sale because the building on the property spanned all three lots. The appellants sought to vacate the referee’s deed because the foreclosure judgment directed the sale “in multiple parcels or in bulk” which was impossible:

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CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced… . In addition, CPLR 5019(a) gives trial courts the discretion to cure mistakes, defects, and irregularities that do not affect substantial rights of parties… . Here, the appellants failed to establish that a substantial right of theirs was prejudiced by the court’s sua sponte, inter alia, deeming the property to have been sold as one lot … . Northern Blvd Corona, LLC v Northern Blvd Prop., LLC, 2018 NY Slip Op 00427, Second Dept 1-24-18

FORECLOSURE (ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CPLR 2001(POWER TO CORRECT, ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CPLR 5019 (POWER TO CORRECT, ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))

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MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT).

The Second Department determined the motion to vacate a referee’s deed in foreclosure was properly denied. The appellant’s alleged that price at which the property sold was too low and was the result of a conspiracy among the bidders. The court noted that foreclosed properties routinely sell below market value and the proof of the alleged conspiracy was improperly submitted in reply papers:

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A court may exercise its inherent equitable power to ensure that a foreclosure sale conducted pursuant to a judgment of foreclosure “is not made the instrument of injustice” … and, therefore, may set aside a foreclosure sale ” where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale'”… . Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court’s conscience  … . “[I]n most instances,” the fair market value of a mortgaged property “will exceed the winning bid” on that property at a foreclosure sale … . Northern Blvd Corona, LLC v Northern Blvd Prop., LLC, 2018 NY Slip Op 00428, Second Dept 1-24-18

FORECLOSURE (MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))/REFEREE’S DEED (FORECLOSURE, MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, (MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT)).REPLY (CIVIL PROCEDURE, MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))

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THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a 2009 foreclosure action accelerated the debt and therefore started the statute of limitations. The dismissal of the 2009 action did not revoke the election to accelerate. The current owner of the property was therefore entitled to a discharge of the mortgage:

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The filing of the summons and complaint in the 2009 action was sufficient to accelerate the mortgage … . Contrary to the Supreme Court’s determination, although a lender may revoke its election to accelerate the mortgage, the dismissal of the prior foreclosure action did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the 2009 action … . MSMJ Realty, LLC v DLJ Mtge. Capital, Inc., 2018 NY Slip Op 00422, Second Dept 1-24-18

FORECLOSURE (THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))

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BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to renew and reargue in this foreclosure action should not have been granted:

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A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance  … . Renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” … . …

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A motion for leave to reargue is similarly directed to the trial court’s discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied law (see CPLR 2221[d] …). Here, … the court, in its initial determination, did not overlook or misapprehend relevant facts or misapply the law in deciding that [the bank] had failed to meet its prima facie burden on the issue of standing, thus requiring denial of its motion … . JPMorgan Chase Bank, N.A. v Jeffrey Novis, 2018 NY Slip Op 00281, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT)).CPLR 2221 (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))

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AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of merit submitted by the bank did not demonstrate the affiant had the authority to act on the bank’s behalf:

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“Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party” … . Here, the plaintiff submitted an affidavit of merit executed by the Vice President of Loan Documentation for the plaintiff’s purported “servicer.” However, there is no evidence in the record demonstrating that the Vice President of Loan Documentation had the authority to act on behalf of the plaintiff. Under such circumstances, the Supreme Court should have denied those branches of the plaintiff’s motion which were for leave to enter a default judgment … and for an order of reference, with leave to renew upon proper papers … . HSBC Bank USA, N.A.. v Cooper, 2018 NY Slip Op 00280, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, DEFAULT JUDGMENT, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/AFFIDAVIT OF MERIT (CIVIL PROCEDURE, DEFAULT JUDGMENT, FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPRL 3215  (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined petitioner’s motion for leave to discontinue its tax certiorari proceeding (seeking lower property tax assessments) with respect to one of its properties was properly denied because respondent town’s ability to defend would be prejudiced. However, Supreme Court should not have order the merger of two of the tax lots because neither party had requested that relief:

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A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

Here, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend the assessment on the remaining parcel.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing the parties to merge two of the subject tax lots. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, 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, neither party sought merger of the subject lots or similar relief, and merger of those lots could potentially be prejudicial to the petitioner. Matter of Catherine Commons, LLC v Town of Orangetown, 2018 NY Slip Op 00287, Second Dept 1-17-18

CIVIL PROCEDURE (DISCONTINUANCE, SUA SPONTE RULING, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/DISCONTINUANCE (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/SUA SPONTE RULING (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/REAL PROPERTY TAX (TAX CERTIORARI PROCEEDINGS, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/PROPERTY TAX ASSESSMENTS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/TAX CERTIORARI PROCEEDINGS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))

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