Deutsche Bank Nat'l Tr. Co. v. Pulver

• Decision Date: 23 December 2022
• Docket Number: 885 CA 21-01243
• Citation: 2022 NY Slip Op 07376
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1, PLAINTIFF-APPELLANT, v. JEFFREY PULVER, ALSO KNOWN AS JEFFREY W. PULVER, WENDY A. PULVER, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 07376

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1, PLAINTIFF-APPELLANT,
v.
JEFFREY PULVER, ALSO KNOWN AS JEFFREY W. PULVER, WENDY A. PULVER, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.

No. 885 CA 21-01243

Supreme Court of New York, Fourth Department

December 23, 2022

ROBERTSON ANSCHUTZ SCHNEID CRANE & PARTNERS, PLLC, WESTBURY (JOSEPH F. BATTISTA OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (JAMIE ROBBINS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.

Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, J.), entered June 9, 2021. The order granted the motion of defendants Jeffrey Pulver, also known as Jeffrey W. Pulver, and Wendy A. Pulver to dismiss the complaint pursuant to CPLR 3216.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In 2007, Jeffrey Pulver, also known as Jeffrey W. Pulver, and Wendy A. Pulver (defendants) executed a note secured by a mortgage on their primary residence. They ceased making payments on the note in the following year, and in 2010 plaintiff commenced this mortgage foreclosure action. Defendants filed a timely answer. In 2014, plaintiff filed a consent to change attorney form, indicating that its attorney of record would be Clarfield, Okon, Salomone & Pincus, P.L. (COSP). No further action was taken by the parties until September 2019, when defendants filed a "Demand for Resumption of Prosecution of Action and Note of Issue" pursuant to CPLR 3216 (demand). Defendants' attorney states that she sent copies of the demand via certified mail to COSP at the address listed on the consent to change attorney form; to COSP at an address listed on an item of mail that COSP had sent to defendants; and to a law firm that she believed may have merged with COSP. The mail that defendants' attorney sent to COSP at the first address was returned, but the other two items were delivered. It is undisputed that at the time the demand was filed COSP had dissolved. It is also undisputed that, although a different law firm had received the file in 2016, the new attorney did not file a notice of appearance and neither law firm filed any paperwork that would have alerted defendants to a change in plaintiff's attorney of record.

Two months after the demand was filed, plaintiff...