| Emigrant Mtge. Co., Inc. v Fisher |
| 2011 NY Slip Op 09264 [90 AD3d 823] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Emigrant Mortgage Company, Inc., Appellant, v Doris M.Fisher et al., Respondents, et al., Defendants. |
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In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Bayne, J.), dated December 10, 2010, which denied that branchof its motion pursuant to RPAPL 1321 which was for an order of reference and, sua sponte,directed the defendants Doris M. Fisher and Rochone D. Fisher to make reduced monthlymortgage payments, effective January 1, 2011, to submit proof of "excessive medical bills" to theplaintiff, to increase the monthly mortgage payments once a "medical condition" at issue"improves" and, thereupon, to "make additional payments to cover the difference between. . . [the amounts] due, and the actual [reduced] payments made."
Ordered that on the Court's own motion, the appeal from so much of the order as, sua sponte,directed the defendants Doris M. Fisher and Rochone D. Fisher to make reduced monthlymortgage payments, effective January 1, 2011, to submit proof of "excessive medical bills" to theplaintiff, to increase the monthly mortgage payments once a "medical condition" at issue"improves" and, thereupon, to "make additional payments, to cover the difference between. . . [the amounts] due, and the actual [reduced] payments made," is deemed anapplication for leave to appeal from that portion of the order, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and that branch of the plaintiff's motion which was for an order of reference is granted.
The defendants Doris M. Fisher and Rochone D. Fisher (hereinafter together the defendants)defaulted on their consolidated mortgage loan. In June 2009 the plaintiff, the holder of the noteand mortgage, commenced this action, inter alia, to foreclose the mortgage. The defendants wereserved with the summons and complaint, and failed to answer, appear, or move for any relief. InOctober 2009 the plaintiff moved, among other things, pursuant to RPAPL 1321 for an order ofreference. On October 21, 2009, the defendants were served with the motion papers by regularmail. They failed to either oppose the motion or cross-move for any relief. On December 10,2010, the Supreme Court denied that branch of the plaintiff's motion which was for an order ofreference and, sua sponte, directed the defendants to make reduced monthly mortgage payments,effective January 1, 2011, to submit proof of "excessive medical bills" to the plaintiff, to increasethe monthly mortgage payments once a "medical condition" at issue "improves" and, thereupon,to "make additional payments to cover the difference between . . . [the amounts]due, and the actual [reduced] payments made." The plaintiff appeals. We reverse.[*2]
"Generally, a court may, in its discretion, 'grant relief thatis warranted by the facts plainly appearing on the papers on both sides, if the relief granted is nottoo dramatically unlike the relief sought, the proof offered supports it, and there is no prejudiceto any party' " (Clair v Fitzgerald,63 AD3d 979, 980 [2009], quoting Frankel v Stavsky, 40 AD3d 918, 918-919 [2007]; see Matter of Myers v Markey, 74AD3d 1344, 1345 [2010]). However, " 'stability of contract obligations must not beundermined by judicial sympathy' " (First Natl. Stores v Yellowstone Shopping Ctr., 21NY2d 630, 638 [1968], quoting Graf v Hope Bldg. Corp., 254 NY 1, 4-5 [1930]).
Here, the Supreme Court improvidently exercised its discretion in denying that branch of theplaintiff's motion which was for an order of reference and in making certain directives suasponte. The defendants failed to oppose the motion, which was supported by documentary proofshowing, among other things, that the plaintiff was the holder of the note and mortgage, that thedefendants defaulted thereon, and that, as a preliminary step in obtaining a judgment offoreclosure, the appointment of a referee to compute the amount due on the mortgage would beproper (see RPAPL 1321; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770,771 [1996]). In addition, the relief granted by the Supreme Court, sua sponte, exceeded the scopeof its authority in deciding the motion (see U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048 [2011]; IndyMac Bank, F.S.B. v Yano-Horoski,78 AD3d 895, 896 [2010]; HSBCBank USA, N.A. v Valentin, 72 AD3d 1027, 1029 [2010]; Kay Found. v S & F Towing Serv. of StatenIs., Inc., 31 AD3d 499, 501-502 [2006]).
Accordingly, that branch of the plaintiff's motion which was for an order of reference shouldhave been granted. Dillon, J.P., Florio, Chambers and Miller, JJ., concur.