Emigrant Mortg. Co. v. Fisher
Decision Date | 20 December 2011 |
Citation | 2011 N.Y. Slip Op. 09264,935 N.Y.S.2d 313,90 A.D.3d 823 |
Parties | EMIGRANT MORTGAGE COMPANY, INC., appellant, v. Doris M. FISHER, et al., respondents, et al., defendants. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for appellant.MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was for an order of reference is granted.
The defendants Doris M. Fisher and Rochone D. Fisher (hereinafter together the defendants) defaulted on their consolidated mortgage loan. In June 2009 the plaintiff, the holder of the note and mortgage, commenced this action, inter alia, to foreclose the mortgage. The defendants were served with the summons and complaint, and failed to answer, appear, or move for any relief. In October 2009 the plaintiff moved, among other things, pursuant to RPAPL 1321 for an order of reference. On October 21, 2009, the defendants were served with the motion papers by regular mail. They failed to either oppose the motion or cross-move for any relief. On December 10, 2010, the Supreme Court denied that branch of the plaintiff's motion which was for an order of reference and, sua sponte, directed the defendants to make reduced monthly mortgage payments, effective January 1, 2011, to submit proof of “excessive medical bills” to the plaintiff, to increase the monthly mortgage payments once a “medical condition” at issue “improves” and, thereupon, to “make additional payments to cover the difference between ... [the amounts] due, and the actual [reduced] payments made.” The plaintiff appeals. We reverse.
“Generally, a court may, in its discretion, ‘grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically...
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