| Gettysburgh St. Holding Corp. v Bank of N.Y.Mellon |
| 2016 NY Slip Op 02052 [137 AD3d 1076] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| Gettysburgh Street Holding Corp.,Appellant, v Bank of New York Mellon,Respondent. |
Richard J. Sullivan, Port Jefferson, NY, for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Andrew C. Morgansternof counsel), for respondent.
In an action pursuant to RPAPL 1501 (4) to cancel and discharge a mortgage,commenced by motion for summary judgment in lieu of complaint pursuant to CPLR3213, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Hart,J.), entered April 8, 2014, and (2) an order of the same court entered August 19, 2014,which denied the motion and, sua sponte, discharged Richard J. Sullivan as attorney forthe plaintiff and vacated a prior order of the same court (Rosengarten, J.) entered June25, 2013, in a foreclosure action entitled Bank of New York v Leonardo,commenced under index No. 2314/07, which granted a motion to dismiss the complaintin that action.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder entered August 19, 2014, as, sua sponte, discharged Richard J. Sullivan as attorneyfor the plaintiff and vacated the order entered June 25, 2013, in the foreclosure action isdeemed to be an application for leave to appeal from those portions of the order, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the appeal from the order entered April 8, 2014 is dismissed, withoutcosts or disbursements, as that order was superseded by the order entered August 19,2014; and it is further,
Ordered that the order entered August 19, 2014 is modified, on the law, by deletingthe provisions thereof, sua sponte, discharging Richard J. Sullivan as attorney for theplaintiff and vacating the order entered June 25, 2013, in the foreclosure action; as somodified, the order is affirmed, without costs or disbursements, and the matter is remittedto the Supreme Court, Queens County, for further proceedings consistent herewith beforea different Justice.
In 2007, the defendant Bank of New York Mellon (hereinafter the Bank)commenced an action to foreclose a mortgage secured by property owned by nonpartyVictor Leonardo. During the pendency of the foreclosure action, Leonardo transferredtitle to the property to Gettysburgh [*2]Street HoldingCorp. (hereinafter Gettysburgh). In an order entered June 25, 2013, the Supreme Courtgranted a motion pursuant CPLR 3216 to dismiss the complaint in the foreclosure actionfor failure to resume prosecution. Gettysburgh then commenced this action by motion forsummary judgment in lieu of complaint against the Bank to cancel and discharge themortgage.
The Supreme Court properly denied Gettysburgh's motion for summary judgment inlieu of complaint. CPLR 3213 provides that "[w]hen an action is based upon aninstrument for the payment of money only or upon any judgment, the plaintiff may servewith the summons a notice of motion for summary judgment and the supporting papers inlieu of a complaint." The holder of a note can therefore bring an action by motion forsummary judgment in lieu of complaint when "the full extent of the debtor's obligationcan be gleaned from the face of the note alone" (Gallagher v Kazmierczuk, 245AD2d 418, 418 [1997]). Here, the document upon which Gettysburgh relies, the orderentered June 25, 2013, granting a motion to dismiss the complaint in the foreclosureaction, is not an instrument for the payment of money or a judgment. Accordingly, it wasimproper for Gettysburgh to commence this action by motion for summary judgment inlieu of complaint pursuant to CPLR 3213.
However, the Supreme Court erred in, sua sponte, discharging Richard J. Sullivanfrom representing Gettysburgh in this action. It is not evident from the record that aconflict of interest exists (seeRainbow Hill Homeowners Assn., Inc. v Gigante, Inc., 32 AD3d 532 [2006]), orthat Sullivan's representation of Gettysburgh in this particular action is otherwiseimproper (see 22 NYCRR 1200.0).
The Supreme Court also erred in, sua sponte, vacating the order entered June 25,2013 in the foreclosure action. The Bank did not appeal from that order granting amotion to dismiss the complaint, and it made no motion to restore the case. Thus, theBank never made a showing of a reasonable excuse for the default or a potentiallymeritorious cause of action (see CPLR 5015 [a]; Lopez v Imperial DeliveryServ., 282 AD2d 190, 197 [2001]). Moreover, contrary to the Bank's contention, therecord does not contain sufficient reason to vacate the order in the interests of substantialjustice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Hudson City Sav. Bank vCohen, 120 AD3d 1304 [2014]). Chambers, J.P., Austin, Sgroi and Duffy, JJ.,concur.
u>
Motion by the respondent, inter alia, to dismiss appeals from two orders of theSupreme Court, Queens County, entered April 8, 2014 and August 19, 2014,respectively, on the ground that the appellant, in effect, lacked capacity to sue. Bydecision and order on motion of this Court dated January 13, 2015, that branch of themotion which is to dismiss the appeals was held in abeyance and referred to the panel ofJustices hearing the appeals for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeals, it is
[*3] Ordered that the branch of the motion which is to dismiss the appeals is denied.Chambers, J.P., Austin, Sgroi and Duffy, JJ., concur.