| U.S. Bank N.A. v Eaddy |
| 2013 NY Slip Op 05896 [109 AD3d 908] |
| September 18, 2013 |
| Appellate Division, Second Department |
| U.S. Bank National Association,Respondent, v Shelley R. Eaddy, Appellant, et al.,Defendants. |
—[*1] Hogan Lovells US LLP, New York, N.Y. (David Dunn and Jordan L. Estes ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Shelley R. Eaddy appeals from anorder of the Supreme Court, Rockland County (Berliner, J.), entered October 11, 2011,which granted the plaintiff's motion pursuant to CPLR 2001 and 5019 (a), inter alia, tosubstitute, nunc pro tunc, newly signed affidavits of merit and of the amount due in placeof the affidavits of merit and of the amount due that were attached to the plaintiff'sapplication for an order of reference and application for a judgment of foreclosure andsale.
Ordered that the order is affirmed, with costs.
On October 26, 2007, the plaintiff commenced the instant action to foreclose on theresidential mortgage of the defendant Shelley R. Eaddy. On October 20, 2010, which wasafter the plaintiff obtained a judgment of foreclosure and sale, but before the subjectproperty was sold, then Chief Administrative Judge Ann T. Pfau issued AdministrativeOrder 548/10, which has since been amended by Administrative Order 431/11.Administrative Order 548/10 required that the plaintiff's counsel in a residentialmortgage foreclosure action file an affirmation with the court, confirming that he or shecommunicated with a representative of the plaintiff, who informed counsel that he or she"(a) has personally reviewed [the] plaintiff's documents and records relating to this case;(b) has reviewed the [s]ummons and [c]omplaint, and all other papers filed in this matterin support of foreclosure; and (c) has confirmed both the factual accuracy of these courtfilings and the accuracy of the notarizations contained therein." The filing of thisattorney's affirmation is mandatory (see LaSalle Bank, NA v Pace, 100 AD3d 970 [2012]; Wells Fargo Bank, N.A. vHudson, 98 AD3d 576, 578 [2012]; Flagstar Bank v Bellafiore, 94 AD3d 1044, 1045 [2012];US Bank, N.A. v Boyce, 93AD3d 782 [2012]). Where, as here, a judgment of foreclosure has been entered, butthe property has not yet been sold, the attorney's affirmation was required to be filed"five business days before the scheduled auction, with a copy to be served on the referee"(Administrative Order 548/10).
In the instant case, the plaintiff's counsel was advised by the plaintiff that it "couldnot confirm the accuracy with regard to the execution and/or notarizations" of twoaffidavits of merit and of the amount due that had been previously submitted to the court.The plaintiff moved, pursuant to CPLR 2001 and 5019 (a), inter alia, to substitute, nuncpro tunc, newly signed affidavits of merit and of the amount due in place of the affidavitsof merit and of the amount due that had been [*2]attachedto the plaintiff's application for an order of reference and application for a judgment offoreclosure and sale. The Supreme Court granted the motion.
CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake,omission, defect, or irregularity if a substantial right of a party is not prejudiced (seeMatter of Tagliaferri v Weiler, 1 NY3d 605, 606 [2004]; Avalon Gardens Rehabilitation &Health Care Ctr., LLC v Morsello, 97 AD3d 611, 612 [2012]). " 'Pursuant toCPLR 5019 (a), a trial court has the discretion to correct an order or judgment whichcontains a mistake, defect, or irregularity not affecting a substantial right of a party' " (JSO Assoc., Inc. v Price, 104AD3d 737, 738 [2013], quoting Adams v Fellingham, 52 AD3d 443, 444 [2008]). Theprovisions in CPLR 2001 and 5019 (a) may only be employed to correct errors where thecorrections do not affect a substantial right of the parties (see Goldberger v Eisner, 90AD3d 835, 836 [2011]).
Under the facts of this case, the Supreme Court providently exercised its discretion ingranting the plaintiff's motion. No substantial right of Eaddy will be affected by thecourt's substitution of the new affidavits of merit and of the amount due (cf. GMACMtge., LLC v Bisceglie, 109 AD3d 874 [2013] [decided herewith]). The newproposed affidavits of merit and of the amount due list the same amounts due andowing as those stated in the original affidavits submitted with the application for theorder of reference and the application for the judgment of foreclosure and sale. Further,Eaddy has remained in possession of the subject property throughout the pendency of theinstant action.
Eaddy's remaining contentions are either not properly before this Court or withoutmerit. Mastro, J.P., Rivera, Lott and Cohen, JJ., concur.