Deutsche Bank Nat'l Trust Co. v. Henry

• Decision Date: 23 December 2020
• Docket Number: Index No. 44692/07,2018–11378,44692/07
• Citation: 189 A.D.3d 1357,134 N.Y.S.3d 790 (Mem)
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Gail HENRY, et al., defendants, 6 Monroe Street, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1357
134 N.Y.S.3d 790 (Mem)

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant,
v.
Gail HENRY, et al., defendants,

6 Monroe Street, LLC, respondent.

2018–11378
Index No. 44692/07
44692/07

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

Submitted—June 22, 2020
December 23, 2020

Leopold & Associates, PLLC, Armonk, N.Y. (Stephanie Rojas of counsel), for appellant.

Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence

134 N.Y.S.3d 791

Knipel, J.), dated August 2, 2018. The order denied the plaintiff's motion to vacate a conditional order of dismissal of the same court dated March 7, 2017, and to restore the action to the active calendar.

ORDERED that the order dated August 2, 2018, is reversed, on the law, with costs, and the plaintiff's motion to vacate the conditional order of dismissal dated March 7, 2017, and to restore the action to the active calendar is granted.

In August 2004, the defendants Gail Henry and Elis Joseph borrowed $720,000 from Argent Mortgage Company, LLC (hereinafter Argent). Henry and Joseph executed a note evidencing the loan and a mortgage as security for the note. The mortgage encumbered real property located at 6 Monroe Street, in Brooklyn (hereinafter the subject property). In 2005, the subject property was conveyed to an individual who is not a party to this action. At the time of that conveyance, however, Argent's note was not paid off. In December 2007, the plaintiff commenced this action to foreclose the mortgage. In October 2014, the defendant 6 Monroe Street, LLC (hereinafter the defendant), became the owner of the subject property.

On March 7, 2017, the Supreme Court held a status conference in the action. The court then issued a conditional order of dismissal dated March 7, 2017, in which it stated that more than one year had passed since joinder of issue, and that the plaintiff had unreasonably neglected to prosecute the action. The court then stated that "this action is dismissed pursuant to CPLR 3216 and the County Clerk is directed to cancel the Notice of Pendency unless Plaintiff files a note of issue or otherwise proceeds by motion...