IndyMac Bank, F.S.B. v. Vincoli
| Decision Date | 03 April 2013 |
| Parties | INDYMAC BANK, F.S.B., plaintiff, v. Lillian M. VINCOLI, also known as Lillian Vincoli, et al., defendants. (Action No. 1) Frank Lato, respondent, v. Cathy M. Lato, et al., defendants, Stewart Title Insurance Company, appellant. (Action No. 2). |
| Court | New York Supreme Court — Appellate Division |
105 A.D.3d 704
962 N.Y.S.2d 624
2013 N.Y. Slip Op. 02221
INDYMAC BANK, F.S.B., plaintiff,
v.
Lillian M. VINCOLI, also known as Lillian Vincoli, et al., defendants. (Action No. 1)
Frank Lato, respondent,
v.
Cathy M. Lato, et al., defendants,
Stewart Title Insurance Company, appellant. (Action No. 2).
Supreme Court, Appellate Division, Second Department, New York.
April 3, 2013.
[962 N.Y.S.2d 625]
Thomas G. Sherwood, LLC, Garden City, N.Y. (James P. Truitt III and Rebecca J. Waldren of counsel), for appellant.
Richard S. Candee, Mount Kisco, N.Y. (Benjamin L. Felcher Leavitt of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
[105 A.D.3d 705]In two related actions, inter alia, to foreclose a mortgage and to set aside certain transfers of real property, Stewart Title Insurance Company, a defendant in Action No. 2, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered July 26, 2011, as denied that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of real property, denied that branch of its motion which was to cancel the notice of pendency filed in Action No. 2, denied that branch of its motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action in Action No. 2 alleging fraud insofar as asserted against it, granted that branch of the cross motion of Frank Lato, the plaintiff in Action No. 2 and a defendant in Action No. 1, which was to vacate the final judgment of foreclosure and sale
[962 N.Y.S.2d 626]
in Action No. 1, vacated the sale of the subject property, and granted that branch of Frank Lato's cross motion which was to consolidate the actions pursuant to CPLR 602(a) to the extent of directing a joint trial.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Stewart Title Insurance Company which were pursuant to CPLR 3211(a)(5) to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of real property, to cancel the notice of pendency filed in Action No. 2 and, pursuant to CPLR 3211(a)(7), to dismiss the second cause of action in Action No. 2 alleging fraud insofar as asserted against it are granted, and the cross motion of Frank Lato to vacate the final judgment of foreclosure and sale in Action No. 1 and to consolidate the actions pursuant to CPLR 602(a) is denied.
On July 29, 2008, IndyMac Bank, F.S.B. (hereinafter IndyMac) obtained a final judgment of foreclosure and sale, upon default, against, among others, Frank Lato in connection...
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