U.S. Bank, Nat'l Ass'n v. Duran, 2016–13190

• Decision Date: 17 July 2019
• Docket Number: 2016–13190,Index No. 17224/11
• Citation: 106 N.Y.S.3d 160,174 A.D.3d 768
• Parties: U.S. BANK, NATIONAL ASSOCIATION, etc., Respondent, v. Douglas M. DURAN, et al., Defendants, Gustavia Home, LLC, etc., Nonparty-Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 768
106 N.Y.S.3d 160

U.S. BANK, NATIONAL ASSOCIATION, etc., Respondent,
v.
Douglas M. DURAN, et al., Defendants,

Gustavia Home, LLC, etc., Nonparty-Appellant.

2016–13190
Index No. 17224/11

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

Submitted - May 3, 2019
July 17, 2019

Zimmerman Law, P.C., Huntington Station, N.Y. (Naomi Trainer and Antonio Marano of counsel), for nonparty -appellant.

McGlinchey Stafford PLLC, New York, N.Y. (Brian S. McGrath and Mitra Paul Singh of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

106 N.Y.S.3d 161

DECISION & ORDER

174 A.D.3d 768

In an action to foreclose a mortgage, nonparty Gustavia Home, LLC, appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 26, 2016. The order, insofar as appealed from, denied those branches of the cross motion of Gustavia Home, LLC, which were (1) pursuant to CPLR 1021 for leave to amend the caption and substitute Gustavia Home, LLC, as successor in interest in place of the defendant Mortgage Electronic Registration Systems, Inc., and (2) pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the cross motion of Gustavia Home, LLC, which was pursuant to CPLR 1021 for leave to amend the caption and substitute Gustavia Home, LLC, as successor in interest in place of Mortgage Electronic Registration Systems, Inc., and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On December 9, 2011, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Douglas M. Duran and the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS). MERS was named in the action as the holder of a subordinate note and mortgage against the subject property and was served with the summons and complaint on December 15, 2011, pursuant to CPLR 311(a)(1). MERS did not answer, appear, or otherwise move with respect to the complaint within the time provided by statute (see CPLR 320[a] ). Duran appeared and answered the complaint on May 14, 2012.

The plaintiff thereafter filed a request for judicial intervention and sought a foreclosure settlement conference as mandated by CPLR 3408. The matter was assigned to the Supreme Court's Foreclosure Settlement Conference Part for conferencing, during the pendency of which all motion practice

174 A.D.3d 769...