Deutsche Bank Trust Co. v. Stathakis

• Decision Date: 27 December 2011
• Citation: 935 N.Y.S.2d 651,90 A.D.3d 983,2011 N.Y. Slip Op. 09587
• Parties: DEUTSCHE BANK TRUST CO., AMERICAS, etc., plaintiff-respondent, v. Larry STATHAKIS, appellant, et al., defendants;Koren Dafni, nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09587
90 A.D.3d 983
935 N.Y.S.2d 651

DEUTSCHE BANK TRUST CO., AMERICAS, etc., plaintiff-respondent,
v.
Larry STATHAKIS, appellant, et al., defendants;Koren Dafni, nonparty-respondent.

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

Dec. 27, 2011.

[935 N.Y.S.2d 652]

Hersh Jakubowitz, Flushing, N.Y., for appellant.

Steven J. Baum, P.C., Amherst, N.Y. (Jason B. Desiderio and Fincey John of counsel), for plaintiff-respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[90 A.D.3d 983] In an action to foreclose a mortgage, the defendant Larry Stathakis appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated November 15, 2010, as granted those branches of nonparty Koren Dafni's motion which were to cancel and expunge a satisfaction of mortgage filed March 1, 2007, and to amend the caption to substitute herself as the plaintiff in the place of Deutsche Bank Trust Co., Americas, and denied those branches of his cross motion which were to dismiss the complaint or, in the alternative, to cancel any accrued interest and penalties, and for leave to assert counterclaims against Deutsche Bank Trust Co., Americas and/or Koren Dafni.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the appellant's cross motion which was to cancel any interest and penalties that accrued to him on or after March 1, 2007, the date the satisfaction of mortgage was filed, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Deutsche Bank Trust Co., Americas (hereinafter Deutsche Bank), obtained a judgment of foreclosure and sale against the appellant upon his default. Upon proof that the mortgage and the underlying debt were assigned to nonparty Koren Dafni, the Supreme Court providently exercised its discretion in granting that branch of Dafni's motion which was to amend the caption to substitute her for Deutsche Bank ( see CPLR 3025[b]; Maspeth Fed. Sav. & Loan Assn. v. Simon–Erdan, 67 A.D.3d 750, 751, 888 N.Y.S.2d 599).

[935 N.Y.S.2d 653]

Further, the Supreme Court providently exercised its discretion[90 A.D.3d 984] in granting that branch of Dafni's motion which was to cancel and expunge a satisfaction of mortgage filed by Deutsche Bank on March 1, 2007, over two...