NYCTL 1996-1 Trust and the Bank of New York v Harval Development Corporation

NYCTL 1996-1 v Harval Dev. Corp. 2005 NYSlipOp 05214 June 21, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 24, 2005

NYCTL 1996-1 et al., Plaintiffs,
v
Harval Development Corporation, Respondent, and Blake L. Realty (First Services Group, Inc., as Assignee), Appellant, et al., Defendants.

—[*1]Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 24, 2004, which, in a surplus money proceeding, inter alia, denied the cross motion by the assignee of the second mortgagee to pay it the surplus, unanimously affirmed, without costs.

Defendant Blake's claim was untimely (CPLR 213 [4]; Greenpoint Sav. Bank v Kijik, 297 AD2d 359 [2002]; see also Island Holding v O'Brien, 6 AD3d 498 [2004], lv denied 4 NY3d 701 [2004]). Its attempt to distinguish Kijik is not supported by the record. The failure to serve the foreclosure plaintiffs, as required under RPAPL 1361, was more than a mere irregularity. Concur—Mazzarelli, J.P., Friedman, Sullivan, Williams and Gonzalez, JJ.