Private Capital Grp., LLC v. Llobell

• Decision Date: 23 December 2020
• Docket Number: Index No. 24010/08,2018–05420
• Parties: PRIVATE CAPITAL GROUP, LLC, etc., plaintiff, v. Paul V. LLOBELL, Jr., etc., et al., respondents, et al., defendants; Goshen Mortgage, LLC, etc., nonparty-Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1483
134 N.Y.S.3d 760 (Mem)

PRIVATE CAPITAL GROUP, LLC, etc., plaintiff,
v.
Paul V. LLOBELL, Jr., etc., et al., respondents, et al., defendants;

Goshen Mortgage, LLC, etc., nonparty-Appellant.

2018–05420
Index No. 24010/08

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

Argued—February 27, 2020
December 23, 2020

Jeffrey A. Kosterich, LLC, Tuckahoe, N.Y. (Michael Li of counsel), for nonparty—appellant.

Murray Law Group, P.C., West Sayville, N.Y. (Mark A. Murray of counsel), for respondents.

REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, nonparty Goshen Mortgage, LLC, appeals from an order of the Supreme Court, Suffolk County (Jeffrey Arlen Spinner, J.), dated October 27, 2017. The order, insofar as appealed from, in effect, upon reargument, adhered to a prior determination of the same court in an order dated December 23, 2016, granting the motion of the defendants Paul V. Llobell and Barbara A. Llobell pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them.

ORDERED that the order dated October 27, 2017, is reversed insofar as appealed from, on the law, with costs, the determination

134 N.Y.S.3d 761

in the order dated December 23, 2016, granting the motion of the defendants Paul V. Llobell and Barbara A. Llobell pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them is vacated, and that motion is denied.

The instant action was commenced in 2008 to foreclose upon a mortgage executed by the defendants Paul V. Llobell and Barbara A. Llobell (hereinafter together the defendants). The defendants defaulted in answering the complaint, and the plaintiff was granted an order of reference in June 2009. The defendants never moved to vacate their default.

In April 2015, the nonparty-appellant, Goshen Mortgage, LLC (hereinafter Goshen), purportedly purchased the note underlying the subject mortgage. On or about February 11, 2016, the defendants moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them. Goshen opposed the motion and cross-moved...