U.S. Bank Nat'l Ass'n v. Carey

Citation137 A.D.3d 894,28 N.Y.S.3d 68
Parties U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Robert CAREY, also known as Robert J. Carey, et al., respondents, et al., defendants.
Decision Date09 March 2016
CourtNew York Supreme Court Appellate Division

137 A.D.3d 894
28 N.Y.S.3d 68

U.S. BANK NATIONAL ASSOCIATION, etc., appellant,
v.
Robert CAREY, also known as Robert J. Carey, et al., respondents, et al., defendants.

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

March 9, 2016.


28 N.Y.S.3d 69

Stiene & Associates, P.C., Huntington, N.Y. (Charles W. Marino of counsel), for appellant.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and SYLVIA O. HINDS–RADIX, JJ.

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Adams, J.), entered August 11, 2014, which denied its motion, inter alia, for an order of reference and for leave to enter a default judgment against the defendants Robert Carey, also known as Robert J. Carey, and Marie C. Carey, also known as Marie Carey, on the ground that the plaintiff failed to prove compliance with RPAPL 1304, with leave to renew within 60 days, and (2) an order of the same court, entered March 19, 2015, which denied, as untimely, its motion for leave to renew its prior motion and, sua sponte, dismissed the complaint without prejudice.

ORDERED that the order entered August 11, 2014, is reversed, on the law, the order entered March 19, 2015, is vacated, the complaint is reinstated, and the plaintiff's motion, inter alia, for an order of reference and for leave to enter a default judgment against the defendants Robert Carey, also known as Robert J. Carey, and Marie C. Carey, also known as Marie Carey, is granted; and it is further,

ORDERED that the appeal from the order entered March 19, 2015, is dismissed as academic, in light of our determination on the appeal from the order entered August 11, 2014; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In January 2007, the defendants Robert Carey, also known as Robert J. Carey, and Marie C. Carey, also known as Marie Carey (hereinafter together the borrowers), executed a note in the principal sum of $870,000 and a mortgage on their residence in Glen Cove, Nassau County. The instant foreclosure...

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    ...Sparta GP Holding Reo Corp. v. Lynch, 186 A.D.3d 894, 131 N.Y.S.3d 17 ), but the notice is not jurisdictional (see U.S. Bank N.A. v. Carey, 137 A.D.3d 894, 896, 28 N.Y.S.3d 68 ; Pritchard v. Curtis, 101 A.D.3d 1502, 1504, 957 N.Y.S.2d 440 ) and does not represent the litigation itself. In o......
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