You are here: / Judges
, ,

Sua Sponte Dismissal for Lack of Standing Reversed—Defendants Did Not Raise the Defense and Therefore Waived It—Lack of Standing is Not a Jurisdictional Defect

The Second Department determined Supreme Court should not have, sua sponte, dismissed the foreclosure action for an alleged lack of standing. The defendants did not raise the standing defense and, therefore, waived it. Standing is not a jurisdictional defense warranting sua sponte action by the court:

The Supreme Court improperly, sua sponte, directed the dismissal of the complaint on the ground that the plaintiff lacked standing. “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 … . Since the defendants … did not raise the defense of lack of standing in their answers and did not make pre-answer motions to dismiss the complaint on that ground, they waived the issue … . Moreover, 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 … . Onewest Bank, FSB v Prince, 2015 NY Slip Op 05922, 2nd Dept 7-8-15

 

,

Supreme Court Justices Who Are “Certificated” to Continue on the Bench at Age 70 Are Entitled to Both Their Pensions and Their Salaries

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined Judges who reach the age of 70 and are “certificated to continue their services on the Supreme Court bench” are entitled to receive both their pensions and their judicial salaries. To hold otherwise violates the plain meaning of Retirement and Social Security law 212 (1) which reads: “any retired person may continue as retired and, without loss, suspension or diminution of his or her retirement allowance, earn [an amount not greater than statutorily prescribed] in a position or positions in public service.” That same provision provides that “there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]”… . Matter of Loehr v Administrative Bd. of the Cts. of the State of N.Y.2015 NY Slip Op 05243, 3rd Dept 6-18-15

 

, , ,

Tax Payments Made Voluntarily Cannot Be Recovered Under a Mistake of Law Theory/Supreme Court Should Not Raise a “Non-Subject-Matter-Jurisdiction” Defense Sua Sponte

The Third Department determined Supreme Court properly denied petitioner’s request for a refund of real estate taxes paid re: optic cable installations located on private rights-of-way because petitioner had not protested the tax payments and made them voluntarily.  In addition, the court noted that the court should not have raised the statute of limitations defense sua sponte because the defense did not implicate subject matter jurisdiction:

… [U]nless subject matter jurisdiction is implicated, a court should not raise an issue sua sponte when a party is prejudiced by its inability to respond … . Here, because respondent Essex County failed to raise the statute of limitations as an affirmative defense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte … . * * *

… [W]e find no reason to disturb Supreme Court’s partial denial of the petition on the ground that petitioner failed to demonstrate that it paid the taxes involuntarily. To recover payments made under a mistake of law, as in the present case … , a taxpayer is required to show that the payments were made involuntarily … . This requirement ensures that governmental entities have notice that they may need to provide for tax refunds … . Here, petitioner fully paid all of the relevant taxes and offered no proof that it did so under protest or that such payments were otherwise involuntary … . Indeed, petitioner did nothing to indicate that its payments were involuntary until nearly 18 months after the final contested tax bill was paid, when petitioner submitted its RPTL 556-b correction applications … . Matter of Level 3 Communications, LLC v Essex County, 2015 NY Slip Op 04899, 3rd Dept 6-11-15

 

, , ,

Late Notice of Claim Should Not Have Been Deemed Timely (Sua Sponte, Nunc Pro Tunc)—the 90 Days Started Running When Plaintiff’s Asthma Symptoms Worsened, Not When a Doctor Connected the Symptoms to Mold in the Apartment—the Plaintiff Did Not Make a Motion for Permission to File a Late Notice of Claim

The First Department determined Supreme Court should not have, sua sponte (in the absence of a motion by the plaintiff), deemed plaintiff’s late notice of claim timely filed nunc pro tunc. The claim alleged mold resulting from a leak in plaintiff’s New York City Housing Authority (NYCHA) apartment exacerbated plaintiff’s asthma.  The First Department found that the cause of action accrued when plaintiff’s symptoms worsened, no later than February, 2011, not when a connection between the mold and plaintiff’s symptoms was suggested by a doctor in March 2011:

[Plaintiff] was required to file a notice of claim within 90 days after “the date of [her] discovery of the injury” or the date on which “through the exercise of reasonable diligence the injury should have been discovered” (CPLR 214-c[3]; see General Municipal Law § 50-e[1][a]…). NYCHA established that plaintiff’s claim accrued no later than February 2011, by relying on plaintiff’s testimony that her asthma symptoms worsened, resulting in more frequent attacks and hospital visits, starting in September or December of 2010, or January or February of 2011, when she was prescribed additional medications, as reflected in her hospital records. Thus, the notice of claim, filed over 90 days later in June 2011, without leave of court, was late and without effect … .

Plaintiff argues that her claim did not accrue until March 2011, when a doctor noted a connection between her symptoms and the mold in her apartment. However, a “cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e.[,] when the injury is apparent, not when the specific cause of the injury is identified” … .

The court lacked authority to deem the late notice of claim timely filed nunc pro tunc, since plaintiff never moved for such relief and the statutory time limitation for bringing the claim had already expired when NYCHA moved for summary judgment … . Vincent v New York City Hous. Auth., 2015 NY Slip Op 04767, 1st Dept 6-9-15

 

, ,

District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records

The Third Department determined the district attorney’s former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:

The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA — who was formerly a Columbia County Judge — from issuing it. This statute prohibits a former judge from “act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character” (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity… . Matter of Columbia County Subpoena Duces Tecum…, 2014 NY Slip Op 04104, 3rd Dept 6-5-14

 

, ,

Sua Sponte Dismissal for Lack of Standing Improper—Defense Waived by Failure to Answer—Lack of Standing is Not a Jurisdictional Defect

The Second Department, in a mortgage foreclosure proceeding where defendants did not answer, determined the complaint should not have been dismissed sua sponte for lack of standing.  Because the complaint was not answered, the lack-of-standing defense was waived.  In addition, lack-of-standing is not a jurisdictional defect warranting sua sponte dismissal:

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 the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . In any event, 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 … . US Bank Natl. Assn. v Flowers, 2015 NY Slip Op 04308, 2nd Dept 5-20-15

 

,

Excessive Intervention and Improper Conduct of Judge Required New Trial in Medical Malpractice Case

The Second Department reversed and sent a medical malpractice case back for retrial on liability because of the excessive intervention and improper conduct by the trial judge.  The Second Department wrote:

…[T]he trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial (see CPLR 5501[a][1]; 4017…). “[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” …. A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” …. Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance’ “…. Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial-and often times in the presence of the jury-unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. *  *  *

Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner ….  Porcelli v Northern Westchester Hosp, 2013 NY Slip Op 03467, 2nd Dept 5-15-13

 

 

 

,

Rule Requiring Submission of Order or Judgment for Signature within 60 Days Applies Only When Court Directs that the Proposed Order Be Settled or Submitted for Signature

The Fourth Department determined an action had not been abandoned for failure to submit the order for signature within 60 days pursuant to 22 NYCRR 202.48.  That rule applies only when the court directs a party to submit or settle an order or judgment:

…[W]e agree with plaintiff that the court erred in dismissing the complaint sua sponte pursuant to 22 NYCRR 202.48. That rule provides that “[p]roposed orders or judgments . . . must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted . . . Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48 [a], [b]). As the Court of Appeals wrote, “[b]y its plain terms, section 202.48 (a) speaks to the circumstances where the court’s decision expressly directs a party to submit or settle an order or judgment” (Funk v Barry, 89 NY2d 364, 367). Thus, the Court held that “the 60-day period applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature” (id. at 365). Here, the order of reference did not explicitly direct plaintiff to settle or submit an order or judgment for signature. Rather, it directed plaintiff to submit a “Motion or [an] Ex Parte Application” seeking a judgment of foreclosure and sale. We therefore conclude that the court erred in dismissing the complaint in reliance on 22 NYCRR 202.48… . Midfirst Bank v Bellinger, 2014 NY Slip Op 03365, 4th Dept 5-9-14

 

,

State’s Decrease in Its Contribution to Judges’ Health Care Insurance Violated the Compensation Clause of the NYS Constitution

The First Department determined that the state’s decrease in its contribution to the cost of judges’ health care insurance violated the Compensation Clause of the NYS Constitution.  The reduced contribution increased the amounts withheld from judges’ salaries and thereby constituted an unconstitutional decrease in compensation. Bransten v State of New York, 2014 NY Slip Op 03214, 1st Dept 5-6-14

 

, , , ,

Supreme Court Should Not Have Determined the Mortgage Company Did Not Negotiate a Loan Modification in Good Faith Without a Hearing, and Could Not, Pursuant to the Contract Clause, Order the Mortgage Company to Enter a Loan Modification Agreement

After defendant, Ms Hepburn, failed to answer the summons and complaint in a mortgage foreclosure action, the plaintiff mortgage company moved for an order of reference (the appointment of a referee to compute the amount due).  Supreme Court denied the motion and, sua sponte, determined the mortgage company had not negotiated a loan modification in good faith (CPLR 3408), and directed the mortgage company to offer a loan modification within sixty days.  The Second Department determined Supreme Court should have granted the motion for an order of reference (which was not opposed), should not have made a finding the mortgage company failed to negotiate a loan modification in good faith without conducting a hearing, and could not, pursuant to the Contract Clause, order the mortgage company to enter a loan modification agreement:

The Supreme Court should not have, sua sponte, determined that the plaintiff failed to negotiate in good faith as required by CPLR 3408, and directed it, within sixty days, to offer a loan modification to Ms. Hepburn allowing her to assume the subject mortgage. “It is well-settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . A court “may impose a sanction sua sponte, but the party to be sanctioned must be afforded a reasonable opportunity to be heard” … .

Here, the only matter before the Supreme Court was the plaintiff’s motion for an order of reference. Without an evidentiary hearing or notice to the parties, the Supreme Court sua sponte determined that the plaintiff had not acted in good faith in its negotiations with Ms. Hepburn at settlement conferences, which were held over a 16-month period, and thereupon denied the plaintiff’s motion. Such procedure did not afford the plaintiff an opportunity to oppose the Supreme Court’s finding that it had not met it obligation to negotiate in good faith as required by CPLR 3408 or to oppose the imposition of sanctions … . Moreover, even if sanctions for failure to negotiate in good faith were appropriate in this matter, the Supreme Court erred in directing the plaintiff to, in effect, enter into a contract with Ms. Hepburn … . Such a sanction violates the Contract Clause of the United States Constitution … . PHH Mtge. Corp. v Hepburn, 2015 NY Slip Op 03817, 2nd Dept 5-6-15

 

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