Bank of Am., Nat'l Ass'n v. Bah

• Decision Date: 23 May 2012
• Citation: 95 A.D.3d 1150,2012 N.Y. Slip Op. 03969,945 N.Y.S.2d 704
• Court: New York Supreme Court — Appellate Division
• Parties: BANK OF AMERICA, NATIONAL ASSOCIATION, etc., appellant, v. Alseny BAH, et al., defendants.

95 A.D.3d 1150
945 N.Y.S.2d 704
2012 N.Y. Slip Op. 03969

BANK OF AMERICA, NATIONAL ASSOCIATION, etc., appellant,
v.
Alseny BAH, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

May 23, 2012.

McGuireWoods LLP, New York, N.Y. (Marshall Beil and Richard L. Jarashow of counsel), for appellant.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, JEFFREY A. COHEN, JJ.

[95 A.D.3d 1150]In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Schack, J.), dated January 7, 2011, which, sua sponte, directed the dismissal of the complaint with prejudice and the cancellation of a certain [95 A.D.3d 1151]notice of pendency filed against the subject real property, and (2), as limited by its brief, from so much of an order of the same court dated June 27, 2011, as, in effect, denied that branch of its unopposed motion which was pursuant to CPLR 5015 to vacate the order dated January 7, 2011.

ORDERED that on the Court's own motion, the notice of appeal from the order dated January 7, 2011, is deemed to be an application for leave to appeal from that order, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order dated January 7, 2011, is reversed, on the law, without costs or disbursements; and it is further,

ORDERED that the appeal from the order dated June 27, 2011, is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated January 7, 2011.

In 2009 the plaintiff commenced the instant foreclosure action against homeowner Alseny Bah and additional defendants, and filed a notice of pendency against the subject real property. No defendant has ever appeared in this action.

The plaintiff eventually moved for, inter alia, an order of reference. In an order dated November 3, 2010, the Supreme

[945 N.Y.S.2d 705]

Court indicated that it would not consider the motion unless, within 60 days of the issuance of that order, the plaintiff submitted an attorney's affirmation attesting to the accuracy of the plaintiff's documents.

On December 9, 2010, well before the 60–day deadline, the plaintiff moved pursuant to CPLR 2004 for an enlargement of time to file the attorney's affirmation. The Supreme Court never ruled on that motion. Instead, in an order dated January 7, 2011, issued only a few days after the 60–day deadline had passed, the Supreme Court, sua sponte, directed...