| Bank of N.Y. v Stein |
| 2015 NY Slip Op 05628 [130 AD3d 552] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1](July 1, 2015)
| Bank of New York, as Trustee for the CertificateHolders Cwalt, Inc., Alternative Loan Trust 2005-J11 Mortgage Pass-ThroughCertificates Series 2005-J11, Respondent, v John Stein et al., Defendants, andDiane Cricchio Stein, Formerly Known as Diane Cricchio,Appellant. |
Christopher Thompson, West Islip, N.Y., for appellant.
Druckman Law Group, PLLC, Westbury, N.Y. (Lisa M. Browne of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Diane Cricchio Stein, formerlyknown as Diane Cricchio, appeals (1) from an order of Supreme Court, Suffolk County(Rebolini, J.), dated November 15, 2013, which granted the plaintiff's motion to vacate aprior order of reference of the same court dated March 16, 2010, for the issuance of anew order of reference, and to amend the complaint, notice of pendency, and theunderlying mortgage, and denied her cross motion for summary judgment dismissing thecomplaint insofar as asserted against her, and (2), as limited by her brief, from so muchof an order of the same court dated September 30, 2014, as, upon reargument, adhered tothe determination in the order dated November 15, 2013.
Ordered that the appeal from order dated November 15, 2013, is dismissed, as thatorder was superseded by that portion of the order dated September 30, 2014, which wasmade upon reargument; and it is further,
Ordered that the order dated September 30, 2014, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Contrary to the appellant's contention, the Supreme Court providently exercised itsdiscretion in granting that branch of the plaintiff's motion which was pursuant to CPLR5015 (a) (5) to vacate a prior order of reference (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220[2013]). The plaintiff was also entitled to a new order of reference since, in support of itsmotion, it submitted the mortgage, the underlying unpaid note, the complaint settingforth the facts establishing the claim, and an affidavit attesting to the default on themortgage, and the appellant failed to interpose an answer to the complaint (seeRPAPL 1321; HSBC BankUSA, N.A. v Taher, 104 AD3d 815, 816 [2013]; Bank of N.Y. v Alderazi, 99AD3d 837, 838 [2012]; USBank, N.A. v Boyce, 93 AD3d 782 [2012]).
[*2] The Supreme Court properly granted those branches ofthe plaintiff's motion which were to amend the complaint, notice of pendency, and theunderlying mortgage to correct a scrivener's error in the description of the mortgagedproperty, and to make certain other amendments to the complaint, as the amendmentssought were not substantive and did not prejudice the appellant (see Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225 [2014]; Deutsche Bank Natl. Trust Co. v Meah, 120 AD3d 465[2014]).
The appellant's remaining contentions are without merit. Balkin, J.P., Hall, Austinand Sgroi, JJ., concur.