HSBC Bank USA, N.A. v. Williams
| Decision Date | 27 November 2019 |
| Docket Number | Index No. 29408/09,2017–00411,2017–00414 |
| Citation | 111 N.Y.S.3d 654,177 A.D.3d 950 |
| Parties | HSBC BANK USA, N.A., etc., Respondent, v. Kirk WILLIAMS, appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
177 A.D.3d 950
111 N.Y.S.3d 654
HSBC BANK USA, N.A., etc., Respondent,
v.
Kirk WILLIAMS, appellant, et al., Defendants.
2017–00411
2017–00414
Index No. 29408/09
Supreme Court, Appellate Division, Second Department, New York.
Submitted—February 7, 2019
November 27, 2019
Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant.
Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Kirk Williams appeals from (1) an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered April 6, 2016, and (2) an order of the same court also entered April 6, 2016. The first order, insofar as appealed from, denied the motion of the defendant Kirk Williams pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him and granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his affirmative defenses, and for an order of reference. The second order, insofar as appealed from, also granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike his affirmative defenses, and for an order of reference, and referred the matter to a referee to compute the amount due on the mortgage loan.
ORDERED that the first order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant Kirk Williams, to strike his affirmative defenses, and for an order of reference, and substituting therefor a provision denying those branches of the cross motion; as so modified, the first order is affirmed insofar as appealed from, without costs or disbursements, and so much of the second order as granted those branches of the
plaintiff's cross motion and referred the matter to a referee to compute the amount due on the mortgage loan is vacated; and it is further,
ORDERED that the appeal from the second order is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the first order.
On December 21, 2004, the defendant Kirk Williams executed a note in the amount of $399,000 in favor of Fremont Investment & Loan (hereinafter Fremont) and a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Fremont. Williams defaulted on the note by failing to make the payment due on April 1, 2009. On November 2, 2009, the plaintiff commenced this action to foreclose the mortgage. On March 23, 2010, and June 18, 2010, respectively, the plaintiff obtained an order of reference and a judgment of foreclosure and sale, on default. On October 13, 2010, the order of reference and the judgment of foreclosure and sale were
vacated. On November 9, 2010, Williams served an amended answer dated October 27, 2010, in which he generally denied the allegations of the complaint and asserted six affirmative defenses, including lack of standing.
On June 18, 2015, Williams filed and served a "Demand for Resumption of Prosecution of Action and For Note of Issue." When the plaintiff failed to comply, Williams moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. The plaintiff opposed the motion and cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against Williams, to strike his affirmative defenses, and for an order of reference. The plaintiff asserted that it had a justifiable excuse for not proceeding with the action and a potentially meritorious cause of action. The Supreme Court, among other things, denied Williams's motion and granted those branches of the plaintiff's cross motion. Williams appeals.
Where, as here, a plaintiff has been served with a 90–day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default...
To continue reading
Request your trial
-
HSBC Bank USA, Nat'l Ass'n v. Fortini
...comply with the demand for a note of issue, or move to vacate the demand or to extend the 90–day period (see HSBC Bank USA, N.A. v. Williams, 177 A.D.3d 950, 952, 111 N.Y.S.3d 654 ), the plaintiff established a reasonable excuse for its failure to comply with the demand, in that it moved fo......
-
Bank of N.Y. Mellon v. Porfert
...us was submitted as an exhibit to the plaintiff's motion, and it does not include a copy of the note (see HSBC Bank USA, N.A. v. Williams, 177 A.D.3d 950, 953–954, 111 N.Y.S.3d 654 ).The plaintiff also attempted to establish standing through the submission of Benight's affidavit, but this a......
-
Rodriguez v. Diallo
...issue or by moving, before the default date, either to vacate the demand or to extend the 90–day period (see HSBC Bank USA, N.A. v. Williams, 177 A.D.3d 950, 952, 111 N.Y.S.3d 654 ; Deutsche Bank Natl. Trust Co. v Inga, 156 A.D.3d 760 ). The plaintiffs failed to do either within the 90–day ......
-
Bouri v. Jackson
...contentions are without merit.The contention raised at Point III of the plaintiff's brief is not properly before this Court (cf. 177 A.D.3d 950 Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ). RIVERA, J.P., AUSTIN, DUFFY and ......