Practice point: The only noticed application before the Supreme Court was the
plaintiff's order to show cause seeking a finding that the defendants
had violated an earlier court injunction and holding the defendants in
civil contempt. The Appellate Division determined that, as there was no motion by
any party seeking a determination of whether the easement encroachments
were necessary, or, alternatively, de minimis, the motion court was without jurisdiction to award the plaintiff what was, in
effect, dispositive relief consisting of an easement by necessity and a
finding that there were de minimis encroachments, pursuant to CPLR 2214.
Student note: Generally a court is limited to the issues or defenses that
are the subject of the motion before it. See Dunham v. Hilco Constr. Co., 89 NY2d 425, 429.
Case: DiDonato v. Dyckman, NY Slip Op 06556 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Denial of a petition to file a late notice of claim.
