Bank of N.Y. v. Mohammed
| Decision Date | 30 July 2015 |
| Docket Number | 520440 |
| Parties | BANK OF NEW YORK, as Trustee for Certificateholders CWABS, Inc., Asset–Back Certificates, Series 2005–IM3, Appellant, v. Erin MOHAMMED, Also Known as Erin Slavin, Respondent, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
130 A.D.3d 1419
14 N.Y.S.3d 783
2015 N.Y. Slip Op. 06397
BANK OF NEW YORK, as Trustee for Certificateholders CWABS, Inc., Asset–Back Certificates, Series 2005–IM3, Appellant
v.
Erin MOHAMMED, Also Known as Erin Slavin, Respondent, et al., Defendant.
520440
Supreme Court, Appellate Division, Third Department, New York.
July 30, 2015.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Joseph F. Battista of counsel), for appellant.
Frost & Kavanagh, P.C., Troy (Arthur R. Frost of counsel), for respondent.
Before: GARRY, J.P., ROSE, DEVINE and CLARK, JJ.
Opinion
DEVINE, J.
Appeal from an order of the Supreme Court (Zwack, J.), entered July 29, 2014 in Rensselaer County, which denied plaintiff's motions to vacate the dismissal of its foreclosure action.
Plaintiff commenced this foreclosure action against defendant Erin Mohammed in 2006 and was granted a default judgment in 2009. No judgment of foreclosure was ever submitted, and Supreme Court (McDonough, J.) scheduled a status conference for December 7, 2012. After plaintiff failed to appear at the conference, the action was dismissed pursuant to 22 NYCRR 202.27.
Plaintiff thereafter moved to vacate the dismissal and to restore the action to the court calendar, blaming its failure to appear at the conference on a scheduling error by its counsel's office. Supreme Court (Zwack, J.) scheduled a conference on the motion for December 16, 2013, and plaintiff again failed to appear. Plaintiff then filed a second motion, again seeking to vacate the dismissal of the foreclosure action and also seeking to vacate any defaults from its failure to attend the December 2013 conference, citing another failure to properly calendar the
conference date by counsel. Supreme Court thereafter denied both motions, citing a lack of a reasonable excuse for...
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...denied the requests. In July 2015, this Court affirmed Supreme Court's denial of plaintiff's motion to vacate ( Bank of N.Y. v. Mohammed, 130 A.D.3d 1419, 14 N.Y.S.3d 783 [2015] ). In August 2015, plaintiff commenced this foreclosure action (hereinafter the second action) against defendant,......
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...to vacate the 2013 dismissal order which was affirmed on July 30, 2015 by the Appellate Division, Third Department (Bank of N.Y. v. Mohammed, 130 A.D.3d 1419, 14 N.Y.S.3d 783 ).This foreclosure action was commenced on August 11, 2015. The summons and complaint were served on Slavin on Augus......
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...a reasonable excuse for [his or her] failure to appear and a potentially meritorious cause of action” (Bank of N.Y. v. Mohammed, 130 A.D.3d 1419, 1420, 14 N.Y.S.3d 783 [2015] [citations omitted]; see Foley Inc. v. Metropolis Superstructures, Inc., 130 A.D.3d 680, 680, 11 N.Y.S.3d 873 [2015]......
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