You are here: / Judges
, ,

Lack of Standing Defense Waived If Not Raised In Answer or Pre-Answer Motion to Dismiss—Lack of Standing Is Not a Jurisdictional Defect–Sua Sponte Dismissal on that Ground Improper

The Second Department reversed Supreme Court’s sua sponte dismissal of a complaint seeking foreclosure and sale on the ground plaintiff lacked standing.  The defendants did not answer the complaint or make a pre-answer motion to dismiss, so the lack of standing defense was waived:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and cancellation of the notice of pendency. Since the defendants did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . HSBC Bank USA NA v Simmons, 2015 NY Slip Op 01609, 2nd Dept 2-25-15

 

, ,

Charging an Additional 10% Contingency Fee for the Appeal, On Top of the 33 1/3% Contingency Fee for the Trial, for a Total Contingency Fee of 43 1/3 %, Was Proper—Motion Court Did Not Have the Power to Alter the Fee Agreement Sua Sponte and the Motion Court No Longer Had Jurisdiction Over the Case When It Made the Alteration

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a dissent, discussed several fundamental issues in reversing Supreme Court's sua sponte award of attorney's fees which differed from the fee agreed to by the plaintiff and the plaintiff's law firm.  The First department held that the 33 1/3% contingency fee for the trial, and an additional 10% contingency for the appeal, amounting to a 43 !/3 % contingency fee, was proper. In addition, the First Department determined the defendant did not have standing to contest the fee, Supreme Court did not have the power to adjust the fee and Supreme Court no longer had jurisdiction over the case at the time it did so:

Initially, we note that defendant has no standing to challenge the fees agreed upon as between plaintiff and his counsel. CPLR 5015(a)(3) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . fraud, misrepresentation, or other misconduct of an adverse party (emphasis added).” Defendant is not an “interested person” within the meaning of the statute, as even the motion court appeared to recognize. Defendant will pay the same amounts pursuant to the judgment regardless of the division of fees as between plaintiff and his counsel. …

Further, there is no evidence whatsoever that the judgment was procured by fraud, misrepresentation or other misconduct by plaintiff or his attorneys. …

Defendant having no standing under CPLR 5015(a)(3) to challenge the separate fee for appellate work, the court relied on its “inherent authority” to reach the issue. A court, however, has no inherent authority to sua sponte reach the issue of attorneys' fees … .

Moreover, Supreme Court was without jurisdiction to revisit the issue of the propriety of the fees, even upon the motion of a proper party. Since the Court of Appeals denied applications for review … the judgment was final, and Supreme Court lacked jurisdiction to, in effect, reverse the Court by modifying the judgment … .

Plaintiff's expert, a leading expert on legal ethics, opined that it was legally and ethically permissible for the firm to collect a separate fee for appellate work, notwithstanding that the firm is entitled, under the original retainer, to a contingency fee of one third of the recovery. Plaintiff's expert opined that limiting counsel's contingent fee to that encompassed in the initial retainer “does not advance the purpose behind Section 603.7 [Rules of the Appellate Division] . . . i.e., protecting clients from gouging by attorneys.” The expert also observed that had plaintiff chosen to retain new counsel for the appeal, there would be absolutely no question that the new counsel would be entitled to a fee for his or her work, notwithstanding the fact that trial counsel was entitled to receive 33 1/3% of any recovery. Plaintiff's expert noted that it would be “anomalous” to assert that trial counsel should be compensated less favorably than new counsel for performing the work that had not been contemplated by the initial retainer. Stewart v New York City Tr Auth, 2014 NY Slip Op 09063, 1st Dept 12-30-14


, ,

No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order

In affirming the dismissal of an inmate's action seeking to challenge the computation of his sentence (dismissal was based upon the inmate's failure to comply with the service requirements in an order to show cause), the Third Department noted that no appeal lies from an ex parte order, including an order entered sua sponte.  Apparently the remedy is a motion to vacate pursuant to CPLR 5015:

…[T]here is “no right of appeal from an ex parte [judgment/order], including [one] entered sua sponte,” such as Supreme Court's dismissal of the petition here … . Under the circumstances presented here, we decline to treat the notice of appeal from that judgment as an application for leave to appeal (see CPLR 5701 [c]…). Petitioner sought renewal pursuant to CPLR 2221 and, while perhaps more properly viewed as one to vacate pursuant to CPLR 5015, the judgment denying that motion presents the salient issues for review. Matter of Martin v Annucci, 2014 NY Slip Op 08539, 3rd Dept 12-4-14

 

,

Absence of a Certificate of Conformity Not a Fatal Defect Re: a Motion for a Default Judgment/Court Should Not Have Raised, Sua Sponte, a Defense to the Motion on Behalf of Defendant Who Did Not Answer or Appear

The Second Department reversed Supreme Court, finding that the absence of a certificate of conformity was not fatal to the motion for a default judgment:

In 2012, the plaintiff, a resident of the State of Georgia, commenced this action against the defendant, alleging breach of contract and unjust enrichment. On June 22, 2012, the defendant was served with a copy of the summons and complaint pursuant to CPLR 308(1). He neither appeared in the action, interposed an answer, nor otherwise moved with respect thereto. Thereafter, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” … . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]…). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements … . Although the Supreme Court found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect … . Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf … . Todd v Green, 2014 NY Slip OP 08004, 2nd Dept 11-19-14

 

,

Failure to File Proof of Service Is a Procedural Irregularity Which Can Be Cured

The Second Department reversed Supreme Court, finding that plaintiff’s failure to file proof of service of a complaint was a procedural irregularity which had been promptly cured.  The defendant (Hernandez), who was in default, was given 30 days to appear and answer:

The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004 … . Here, in light of the plaintiff’s prompt action in moving to correct the irregularity following the denial of his motion for leave to enter a default judgment and the lack of prejudice to Hernandez, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to deem the filing of proof of service on Hernandez timely nunc pro tunc … . However, contrary to the plaintiff’s contention, a court may not grant such relief retroactive to Hernandez’s prejudice by placing him in default as of a date prior to the order … . In other words, service will not be deemed complete …, as the plaintiff argues (see CPLR 308[4]). Rather, Hernandez must be afforded an additional 30 days after service upon him of a copy of this decision and order to appear and answer … . Khan v Hernandez, 2014 NY Slip Op 07985, 2nd Dept 11-19-14

 

, ,

Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

, ,

Town Board Is Not a Necessary Party In an Action Against the Town—Acts of the Town Board Under Statutory Authority Are the Acts of the Town—Court’s Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

A “court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party” … .

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board “shall be vested with all the powers of such a town” (Town Law § 60[1]) and “cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town” … . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant … . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

, ,

Trial Court Properly Amended Pleadings Sua Sponte and Properly Allowed Plaintiff to Reopen the Case to Present Additional Evidence of Damages

The Second Department held that Supreme Court properly amended the pleadings sua sponte and properly allowed the plaintiff to reopen its case to present additional proof:

A court may amend pleadings before or after judgment to conform them to the evidence (see CPLR 3025[c]). Where no prejudice is shown, an amendment may be allowed during or even after trial … . Furthermore, an application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion … . A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen his or her case, and supplement the evidence to cure any defects in the evidence that have inadvertently occurred … .

Here, under the circumstances of this case, the Supreme Court providently exercised its discretion in, sua sponte, amending the pleadings, continuing the trial, and permitting the plaintiff to reopen its case to present additional proof of damages … . MRI Enters Inc v Comprehensive Med Care of NY PC, 2014 NY Slip Op 07482, 2nd Dept 11-5-14

 

, , ,

Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

, ,

Denial of Request that Judge Recuse Himself Must Be Addressed On Direct Appeal, Not Via an Article 78 Proceeding

The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:

A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal …, including the denial of a party’s request that a judge recuse himself or herself from presiding over a particular matter … . Rather, petitioners’ remedy — at that point in time — was to either reduce respondent’s bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry … and timely file an appeal therefrom … or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order … . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14

 

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