HSBC Bank USA, Nat'l Ass'n v. Simmons
| Decision Date | 25 February 2015 |
| Citation | 125 A.D.3d 930,2015 N.Y. Slip Op. 01609,5 N.Y.S.3d 175 |
| Parties | HSBC BANK USA, NATIONAL ASSOCIATION, etc., appellant, v. Sherrilyn SIMMONS, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
125 A.D.3d 930
5 N.Y.S.3d 175
2015 N.Y. Slip Op. 01609
HSBC BANK USA, NATIONAL ASSOCIATION, etc., appellant
v.
Sherrilyn SIMMONS, et al., defendants.
Supreme Court, Appellate Division, Second Department, New York.
Feb. 25, 2015.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for appellant.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated December 16, 2013, which denied its motion for leave to enter a judgment of foreclosure and sale incorporating the findings in a report of a referee dated August 26, 2013, and, sua sponte, (a) vacated an order of the same court (Knipel, J.)
dated August 6, 2013, granting the plaintiff's motion, in effect, to hold the defendants in default upon their failure to appear or answer, and referred the matter to a referee, among other things, to compute the amount owed to the plaintiff, and (b) directed the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, vacated the order
dated August 6, 2013, and directed the dismissal of the complaint and the cancellation of the notice of pendency is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal from those portions of the order is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order dated December 16, 2013, is reversed, on the law, without costs or disbursements, and the plaintiff's motion for leave to enter a judgment of foreclosure and sale incorporating the findings in the report of the referee dated August 26, 2013, is granted; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings on the complaint before a different Justice.
The Supreme Court had no authority to vacate an order dated August 6, 2013, and signed by another Justice of the court, which granted the plaintiff's motion, in effect, to hold the defendants in default for failure to appear or answer, and referred the matter to a referee. “Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based” (Adams v. Fellingham, 52 A.D.3d 443, 444, 859 N.Y.S.2d 484 ; see CPLR 5019[a] ; Matter of ...
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