HSBC Bank USA, N.A. v. Taher
| Decision Date | 20 March 2013 |
| Citation | 104 A.D.3d 815,962 N.Y.S.2d 301,2013 N.Y. Slip Op. 01806 |
| Court | New York Supreme Court — Appellate Division |
| Parties | HSBC BANK USA, N.A., etc., plaintiff-appellant, v. Eileen N. TAHER, et al., defendants; Shapiro, DiCaro & Barak, LLP, nonparty-appellant. |
104 A.D.3d 815
962 N.Y.S.2d 301
2013 N.Y. Slip Op. 01806
HSBC BANK USA, N.A., etc., plaintiff-appellant,
v.
Eileen N. TAHER, et al., defendants;
Shapiro, DiCaro & Barak, LLP, nonparty-appellant.
Supreme Court, Appellate Division, Second Department, New York.
March 20, 2013.
[962 N.Y.S.2d 302]
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo, N.Y. (Marco Cercone of counsel), for plaintiff-appellant.
Goldberg Segalla LLP, Rochester, N.Y. (Patrick B. Naylon of counsel), for nonparty-appellant.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.
[104 A.D.3d 815]In an action to foreclose a consolidated mortgage, the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Schack, J.), dated July 1, 2011, as denied that branch of its motion which was pursuant to RPAPL 1321 for an order of reference and, by permission, from so much of the same order as, sua sponte, directed dismissal of the complaint with prejudice, cancellation of a certain notice of pendency filed against the subject property, and a hearing on the issue of sanctions against it, and (2) so much of an order of the same court dated December 22, 2011, as, after a hearing, directed it to pay a sanction in the sum of $10,000 to the Lawyers' Fund for Client Protection, and the nonparty Shapiro, DiCaro & Barak, LLP, separately appeals, as limited by its brief, from so much of the order dated December 22, 2011, as directed it to pay a sanction in the sum of $5,000 to the Lawyers' Fund for Client Protection.
ORDERED that the order dated July 1, 2011, is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the plaintiff's motion which was pursuant to RPAPL 1321 for an order of reference is granted; and it is further,
ORDERED that the order dated December 22, 2011, is reversed, on the law, without costs or disbursements; and it is further,
ORDERED that the matter is remitted to the Supreme Court, [104 A.D.3d 816]Kings County, for further proceedings consistent herewith before a different Justice.
The defendant Eileen N. Taher defaulted on her consolidated mortgage loan.
[962 N.Y.S.2d 303]
The plaintiff, the alleged holder of the consolidated mortgage and the consolidated note, commenced this action to foreclose the consolidated mortgage. None of the defendants appeared in the action or answered the complaint. In June 2009, the plaintiff moved, inter alia, pursuant to RPAPL 1321 for an order of reference.
In an order dated July 1, 2011, the Supreme Court denied that branch of the plaintiff's motion which was pursuant to RPAPL 1321 for an order of reference and, sua sponte, directed dismissal of the complaint with prejudice, cancellation of a certain notice of pendency filed against the subject property, and a hearing on the issue of sanctions against the plaintiff and the law firm representing the plaintiff, the nonparty Shapiro, DiCaro & Barak, LLP (hereinafter the law firm) ( see HSBC Bank USA, N.A. v. Taher, 32 Misc.3d 1208[A], 2011 N.Y. Slip...
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