U.S. Bank, N.A. v Landman

U.S. Bank, N.A. v Landman 2015 NY Slip Op 06194 Decided on July 21, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 21, 2015
Gonzalez, P.J., Tom, Renwick, Gische, JJ.
13455 381515/08

[*1] U.S. Bank, N.A., Plaintiff-Respondent,

v

Anna Landman, Defendant-Appellant, Ken Koren, et al., Defendants.

Howard L. Sherman, Ossining, for appellant.

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Jacob E. Amir of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 13, 2013, which denied the motion of defendant Anna Landman (defendant) to dismiss the complaint, unanimously affirmed, without costs.

This foreclosure action was stayed upon discovery that defendant mortgagee Ken Koren had died shortly before the action was filed in 2008 (see e.g. Silvagnoli v Consolidated Edison Empls. Mut. Aid Socy. , 112 AD2d 819, 820 [1st Dept 1985]).

Defendant asserts that the action should have been dismissed because of plaintiff's failure to prosecute. However, plaintiff commenced proceedings in Surrogate's Court for letters of administration in 2010 and while it was necessary to serve supplemental pleadings upon the discovery of relatives of Koren, plaintiff did so in a timely fashion. The only delay since 2012 has been for the Surrogate's Court to rule, and such delay cannot be attributed to plaintiff. Furthermore, defendant failed to comply with the 90-day demand provision of CPLR 3216.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 21, 2015

CLERK