First Franklin Fin. Corp. v. Alfau

• Decision Date: 24 January 2018
• Docket Number: Index No. 13139/08,2016–02639
• Parties: FIRST FRANKLIN FINANCIAL CORPORATION, appellant, v. Rafael E. ALFAU, et al., defendants.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 863
70 N.Y.S.3d 518

FIRST FRANKLIN FINANCIAL CORPORATION, appellant,
v.
Rafael E. ALFAU, et al., defendants.

2016–02639
Index No. 13139/08

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

Submitted—November 13, 2017
January 24, 2018

Dorf & Nelson LLP, Rye, N.Y. (Jonathan B. Nelson of counsel), for appellant.

L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

157 A.D.3d 863

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Greco, Jr., J.), entered October 16, 2015, which, upon a decision of the same court (Rios, J.) dated October 28, 2013, denied its unopposed motion for leave to enter a default judgment, to appoint a referee, to reform the subject mortgage to add the name of the defendant Herminia I. Alfau as a mortgagor, to amend the caption to excise the defendants "John Doe # 2" through "John Doe # 10," substitute Pilar Luna as a defendant in place of "John Doe # 1," and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass–Through Certificates, Series 2005–FF10, as the plaintiff, and, sua sponte, dismissed the complaint.

ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof dismissing the complaint, and (2) by deleting the provisions thereof denying those branches of the plaintiff's motion which were to amend the caption to excise the defendants "John Doe # 2" through "John Doe # 10," substitute Pilar Luna as a defendant in place of "John Doe # 1," and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass–Through Certificates, Series 2005–FF10, as the plaintiff, and substituting therefor a provision granting those branches of the motion; as so modified, the order and

157 A.D.3d 864

judgment is affirmed, without costs or disbursements, and the complaint is reinstated.

In 2005, the defendant Rafael E. Alfau mortgaged property located in Queens that was owned by his wife, the defendant Herminia I. Alfau (hereinafter together the Alfau defendants). In May 2008, the plaintiff commenced this action against, among others, the Alfau defendants, alleging that Rafael defaulted by failing to make the monthly payment due in February 2008. The complaint asserted causes of action, inter alia, to foreclose the mortgage, to reform the mortgage to add Herminia as a mortgagor, since she owned the property, or, alternatively, to impose an equitable lien or equitable mortgage on the property.

After the Alfau defendants' time to appear or answer the complaint expired, the plaintiff moved for leave to enter a default judgment, to appoint a referee, to reform the mortgage to add Herminia as a mortgagor, and to amend the caption to excise the defendants "John Doe # 2" through "John Doe # 10," substitute Pilar Luna as a defendant in place of "John...