NYCTL 1998-2 Trust v. Michael Holdings, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: NYCTL 1998-2 Trust v. Michael Holdings, Inc., 910 N.Y.S.2d 469, 77 A.D.3d 805 (N.Y. App. Div. 2010)
• Decision Date: 19 October 2010
• Parties: NYCTL 1998-2 TRUST, et al., plaintiffs-respondents, v. MICHAEL HOLDINGS, INC., defendant-respondent, et al., defendants; L.T. Motors Auto Sales, Inc., nonparty-appellant.

910 N.Y.S.2d 469

77 A.D.3d 805

NYCTL 1998-2 TRUST, et al., plaintiffs-respondents,

v. MICHAEL HOLDINGS, INC., defendant-respondent, et al., defendants;L.T. Motors Auto Sales, Inc., nonparty-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 19, 2010.

Bhatia & Associates, P.C., New York, N.Y. (Satish K. Bhatia and Bruno C. Bier of counsel), for nonparty-appellant.

Phillips Lytle, LLP, Rochester, N.Y. (Mark J. Moretti and Richard M. Beers of counsel), for plaintiffs-respondents.

Tratner, Molloy & Goodstein, LLP, New York, N.Y. (Jason Y. Goodstein of counsel), for defendant-respondent.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

In an action to foreclose a tax lien, nonparty L.T. Motor Auto Sales, Inc., appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Flug, J.), entered February 13, 2009, as denied its motion to vacate a judgment of foreclosure and sale of the same court entered February 8, 2007, and (2) so much of an order of the same court entered May 8, 2009, as denied that branch of its motion which was for leave to renew its prior motion to vacate, and, in effect, upon granting that branch of its motion which was for leave to reargue its prior motion to vacate the judgment of foreclosure and sale, and its opposition to the motion of the defendant Michael Holdings, Inc., to confirm a referee's report and for the distribution of the surplus money to it, adhered to the original determination.

ORDERED that the appeal from the order entered February 13, 2009, is dismissed, as that order was superseded by the order made, in effect, upon reargument; and it is further,

ORDERED that the order entered May 8, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

As the Supreme Court reviewed the merits of the appellant's contentions on the branch of its motion which was for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, contrary to the respondents' contentions, the order entered May 8, 2009, made, in effect, upon reargument, is appealable ( see Matter of Mattie M. v. Administration for Children's Servs., 48 A.D.3d 392, 851 N.Y.S.2d 236; Rivera v. Glen Oaks Vil. Owners, Inc., 29 A.D.3d 560, 817 N.Y.S.2d 293).

Since the appellant failed to demonstrate that the Supreme Court misapprehended any of the relevant facts that were before it or misapplied any controlling principle of law, the Supreme Court properly adhered to its prior determination denying the appellant's motion to vacate the judgment of foreclosure and sale. A tenant is not an indispensable party to a foreclosure action, and the failure to...