U.S. Bank N.A. v. Nassau Cnty. Pub. Adm'r, 9017

CourtNew York Supreme Court Appellate Division
Citation98 N.Y.S.3d 581,171 A.D.3d 560
Decision Date18 April 2019
Parties U.S. BANK N.A. as Legal Title Trustee for Truman 2013 SC4 Legal Title Trust, Plaintiff–Appellant, v. The NASSAU COUNTY PUBLIC ADMINISTRATOR, as Administrator of the Estate of Kathleen Bestany, Deceased, Defendant, 532 West 187 Realty, LLC, Defendant–Respondent.
Docket Number9017,Index 850323/13

171 A.D.3d 560
98 N.Y.S.3d 581

U.S. BANK N.A. as Legal Title Trustee for Truman 2013 SC4 Legal Title Trust, Plaintiff–Appellant,
v.
The NASSAU COUNTY PUBLIC ADMINISTRATOR, as Administrator of the Estate of Kathleen Bestany, Deceased, Defendant,

532 West 187 Realty, LLC, Defendant–Respondent.

9017
Index 850323/13

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

ENTERED: APRIL 18, 2019


Friedman Vartolo LLP, New York (Chad Harlan of counsel), for appellant.

The Law Office of Jeremy Rosenberg, Chestnut Ridge (Jeremy Rosenberg of counsel), for respondent.

Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.

171 A.D.3d 560

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered June 30, 2017, which granted defendant 532 West 187 Realty LLC's (532 West) motion to vacate the default judgment entered against it, unanimously affirmed, with costs.

We find that the motion court properly exercised its discretion pursuant to CPLR 317. Taken together, the affidavits submitted by 532 West established that it never received notice of the summons because its agent for service never forwarded

the same to it (cf.

John v. Arin Bainbridge Realty Corp. , 147 A.D.3d 454, 455–456, 46 N.Y.S.3d 589 [1st Dept. 2017] ). Plaintiff does not dispute that the affidavits also established that 532 West did not otherwise have notice of the action. Further, there was no indication in the record that 532 West deliberately evaded service (cf. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co. , 67 N.Y.2d 138, 141–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). 532 West showed that it had a potentially meritorious defense to the foreclosure action by submitting a discharge of mortgage that stated that the subject mortgage had been satisfied ( Reale v. Tsoukas , 146 A.D.3d 833, 835, 45 N.Y.S.3d 148 [2d Dept. 2017] ).

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2 practice notes
  • Husovic v. Structure Tone, Inc., 9016
    • United States
    • New York Supreme Court Appellate Division
    • April 18, 2019
    ...respondent.Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.171 A.D.3d 559Order, Supreme Court, New York County (Arlene P. Bluth, 171 A.D.3d 560J.), entered April 30, 2018, which denied defendant's motion to vacate an order, entered on or about December 13, 2017, imposing discovery s......
  • Cascardo v. Dratel, 9022
    • United States
    • New York Supreme Court Appellate Division
    • April 18, 2019
    ...the $25,000 fee, defendants produced only a draft complaint that was essentially identical to the one that she had presented to them (see98 N.Y.S.3d 581 Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 70, 9 N.Y.S.3d 201 [1st Dept. 2015] ). This claim is not duplicative of the legal malpractic......
2 cases
  • Husovic v. Structure Tone, Inc., 9016
    • United States
    • New York Supreme Court Appellate Division
    • April 18, 2019
    ...respondent.Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.171 A.D.3d 559Order, Supreme Court, New York County (Arlene P. Bluth, 171 A.D.3d 560J.), entered April 30, 2018, which denied defendant's motion to vacate an order, entered on or about December 13, 2017, imposing discovery s......
  • Cascardo v. Dratel, 9022
    • United States
    • New York Supreme Court Appellate Division
    • April 18, 2019
    ...the $25,000 fee, defendants produced only a draft complaint that was essentially identical to the one that she had presented to them (see98 N.Y.S.3d 581 Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 70, 9 N.Y.S.3d 201 [1st Dept. 2015] ). This claim is not duplicative of the legal malpractic......

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