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ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).

The Second Department determined Supreme Court properly found that cladding and a drip edge plaintiff added to a party wall constituted a trespass. But Supreme Court should not have granted summary judgment on the issue whether defendant was entitled to an injunction directing plaintiffs to remove the cladding and drip edge:

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… [T]he Supreme Court erred in granting summary judgment to the defendant on the issue of whether it was entitled to an injunction directing the plaintiffs to remove the cladding and drip edge. RPAPL 871(1) provides that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.” In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief” … . Here, the defendant failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor … . Kimball v Bay Ridge United Methodist Church, 2018 NY Slip Op 00417, Second Dept 1-24-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (TRESPASS, PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/TRESPASS (PARTY WALL, ENCROACHMENT,  ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/PARTY WALL (TRESPASS, ENCROACHMENT, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/INJUNCTION (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PARTY WALL, ENCROACHMENT, TRESPASS, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))

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RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a release which related to a medical center and any joint tortfeasors did not preclude a medical malpractice action against doctors who were not employees of the medical center. The plaintiff had undergone surgery for a deviated septum. During the surgery plainitff’s teeth were damaged by the anesthesiologist, an employee of the medical center. The medical center settled with the plaintiff and plaintiff signed a release. The medical malpractice action against the surgeons was not related to the damaged teeth:

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… [T]he release is unambiguously limited to tortfeasors jointly liable with the Medical Center. “At common law the joint and several liability imposed on joint tort-feasors was indivisible, and any one of the joint tort-feasors was liable to the injured party for the entire damage”… . A hospital is not vicariously liable for the malpractice of independently retained doctors who are not employees of the hospital or are not held out as agents of the hospital … . Here, the defendants do not contend that the defendant doctors were employees of the Medical Center, or that they held themselves out as agents of the Medical Center. As such, there would be no basis for joint liability with the Medical Center. Further, the injuries claimed in this action are different from those claimed against and settled with the Medical Center. The lost crown and broken teeth caused by the anesthesiologist, an employee of the Medical Center, are completely distinct from the damages claimed in this action. Hoffmann v Horn, 2018 NY Slip Op 00414, Second Dept 1-24-18

NEGLIGENCE (MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))MEDICAL MALPRACTICE ( RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))/CONTRACT LAW (RELEASES, MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT))/RELEASES (MEDICAL MALPRACTICE, RELEASE WHICH PERTAINED TO MEDICAL CENTER AND ANY JOINT TORTFEASORS DID NOT PRECLUDE A MEDICAL MALPRACTICE ACTION AGAINST SURGEONS WHO WERE NOT EMPLOYEES OF THE MEDICAL CENTER, SUPREME COURT REVERSED (SECOND DEPT)

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OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant out of possession landlord’s motion for summary judgment in this slip and fall case was properly denied. The lease imposed a duty to repair (here plaintiff slipped on water from a leaking water heater) and the landlord’s papers did not demonstrate a lack of actual or constructive notice:

 

An out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. They submitted a copy of the lease, which established that Felice was required to remedy “any defective condition in any plumbing, heating system or electrical lines located in the demised premises” following prompt notice by the tenant. The defendants’ submissions, however, failed to eliminate all triable issues of fact, including whether they had actual or constructive notice of the allegedly defective hot water heater, thereby placing upon them the duty to repair it pursuant to the lease. Accordingly, the motion was properly denied, regardless of the sufficiency of the plaintiff’s opposition papers … . Irizarry v Felice Realty Corp., 2018 NY Slip Op 00415, Second Dept 1-24-18

NEGLIGENCE (SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OUT OF POSSESSION LANDLORD  (NEGLIGENCE, SLIP AND FALL, OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (OUT OF POSSESSION LANDLORD DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF A LEAKING WATER HEATER IN THIS SLIP AND FALL CASE, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) APPLIED, NO EVIDENCE HOMEOWNERS SUPERVISED PLAINTIFF’S WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the homeowner’s exemption from Labor Law 241(6) applied and the complaint was properly dismissed. The fact that the homeowner had worked in the construction field and had excess insurance coverage did not raise a question of fact whether the homeowner supervised plaintiff’s work:

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Contrary to the plaintiff’s contention, the Supreme Court properly found that the statutory exemption contained in Labor Law § 241(6) applied to the [defendants]. Labor Law § 241(6) exempts from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” … . The phrase “direct or control” is “construed strictly and refers to the situation where the owner supervises the method and manner of the work” … .

Here, it is undisputed that the [defendants’] house was a one-family dwelling. Moreover, the [defendants] established, prima facie, that they did not direct or control the work … . In opposition … , the plaintiff failed to raise a triable issue of fact … . Given the lack of evidence that the [defendants] supervised the method and manner of the work, the limited evidence that [the defendant husband] may have previously worked in the construction industry and that the [defendants] had excess insurance coverage does not create a triable issue of fact … . Hicks v Aibani, 2018 NY Slip Op 00413, Second Dept 1-24-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) APPLIED, NO EVIDENCE HOMEOWNERS SUPERVISED PLAINTIFF’S WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/HOMEOWNER’S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) APPLIED, NO EVIDENCE HOMEOWNERS SUPERVISED PLAINTIFF’S WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))

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INSURANCE BROKER DID NOT PRESENT SUFFICIENT EVIDENCE THE AMOUNT OF UNINSURED MOTORIST COVERED REQUESTED BY THE PLAINTIFF WAS PROCURED, BROKER’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant insurance broker’s motion for summary judgment should not have been granted. Plaintiff alleged, under a negligence theory, that the broker failed to procure sufficient uninsured motorist coverage. The papers submitted by the broker failed to demonstrate the amount of coverage requested was procured. Therefore the motion should have been denied without consideration of the opposing papers:

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An insurance broker may be held liable under theories of breach of contract or negligence for failing to procure insurance upon a showing by the insured that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction … .

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because they submitted insufficient evidence that they procured the amount of coverage that the plaintiff engaged them to procure … . Giamundo v Cleveland Dunn 2nd, 2018 NY Slip Op 00411, Second Dept 1-24-18

INSURANCE LAW (INSURANCE BROKER DID NOT PRESENT SUFFICIENT EVIDENCE THE AMOUNT OF UNINSURED MOTORIST COVERED REQUESTED BY THE PLAINTIFF WAS PROCURED, BROKER’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (INSURANCE LAW, INSURANCE BROKER DID NOT PRESENT SUFFICIENT EVIDENCE THE AMOUNT OF UNINSURED MOTORIST COVERED REQUESTED BY THE PLAINTIFF WAS PROCURED, BROKER’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INSURANCE BROKER (NEGLIGENCE, (INSURANCE BROKER DID NOT PRESENT SUFFICIENT EVIDENCE THE AMOUNT OF UNINSURED MOTORIST COVERED REQUESTED BY THE PLAINTIFF WAS PROCURED, BROKER’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Wilmington’s) motion for summary judgment should have been denied in this foreclosure proceeding. The bank’s papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

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Wilmington submitted an affidavit of the managing director of its loan servicer, who attested to the defendant’s default in payment. While he attested to the mailing of a notice of default in accordance with the mortgage and a 90-day notice in accordance with RPAPL 1304, his affidavit did not contain a statement that he was familiar with JP Morgan’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . J.P. Morgan Mtge. Acquisition Corp v Kagan, 2018 NY Slip Op 00416, Second Dept 1-24-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, NOTICE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (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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