Kolkunova v. Guaranteed Home Mortgage Company, Inc.

• Decision Date: 11 September 2007
• Docket Number: 2006-00867.
• Citation: 842 N.Y.S.2d 46,43 A.D.3d 878,2007 NY Slip Op 06642
• Parties: ALEXANDRA KOLKUNOVA, Appellant, v. GUARANTEED HOME MORTGAGE COMPANY, INC., et al., Defendants, and CLIFFORD SIEGEL, Respondent.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 878

842 N.Y.S.2d 46

2007 NY Slip Op 06642

ALEXANDRA KOLKUNOVA, Appellant, v. GUARANTEED HOME MORTGAGE COMPANY, INC., et al., Defendants, and CLIFFORD SIEGEL, Respondent.

2006-00867.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 11, 2007.

In an action pursuant to RPAPL article 15 to compel the determination of a claim to real property, the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated December 22, 2005, which, inter alia, granted those branches of the motion of the defendant Clifford Siegel which were to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (1), (4), (5), and (7).

Ordered that the order is affirmed, with costs.

"A mortgagor or other owner of the equity of redemption of a property subject to a judgment of foreclosure and sale may redeem the mortgage at any time prior to the foreclosure sale" (Norwest Mtge., Inc. v Brown, 35 AD3d 682, 683 [2006]; see Bank of N.Y. v Ortiz, 30 AD3d 551 [2006]; United Capital Corp. v 183 Lorraine St. Assoc., 251 AD2d 400 [1998]). The right to redeem is extinguished as a matter of law upon the foreclosure sale, whether or not the deed has been delivered (see Deutsche Bank Co. of Cal., N.A. v DePalo, 38 AD3d 490 [2007]; NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957, 958 [2003]; GMAC Mtge. Corp. v Tuck, 299 AD2d 315, 316 [2002]). "Once the right to redeem is lost, it cannot be revived, even by court order" (Norwest Mtge., Inc. v Brown, supra at 684).

Here, the plaintiff's equity of redemption in the premises was extinguished by a foreclosure sale in 2005 (see Norwest Mtge., Inc. v Brown, supra at 683-684; United Capital Corp. v 183 Lorraine St. Assoc., supra at 400). Although the plaintiff appealed the denial of her motion to vacate the underlying judgment of foreclosure and sale, that appeal was subsequently dismissed for failure to prosecute. The plaintiff thereafter commenced the instant action to set aside the foreclosure sale, claiming improprieties in the events surrounding the closing of title which resulted in the sale of the premises.

However, the plaintiff lacked any interest in the premises at the time of commencement of this action and therefore lacked standing to commence an action to reinstate her right to redeem the property (see CPLR 3211 [a] [3]; Ocwen Fed. Bank v Bassi, 294 AD2d 478 [2002]; Scheckter v Emigrant Sav. Bank, 237 AD2d 273, 274 [19...