U.S. Bank NA v Warshaw

U.S. Bank NA v Warshaw 2018 NY Slip Op 03914 Decided on May 31, 2018 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 May 31, 2018
Sweeny, J.P., Richter, Andrias, Kahn, Moulton, JJ.
6742 850235/15

[*1]U.S. Bank NA, etc., Plaintiff-Respondent,

v

Howard Warshaw, et al., Defendants. Arusa Trade & Finance, Nonparty Appellant.

Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains (Geraldine A. Cheverko of counsel), for respondent.

Order, Supreme Court, New York County (Anthony Cannataro, J.), entered March 13, 2017, which granted plaintiff's motion to vacate an order directing that this mortgage foreclosure action be discontinued and the lis pendens vacated, and restored the action, unanimously affirmed, with costs.

The court providently exercised its discretion in granting plaintiff's motion to vacate the dismissal order (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]). Plaintiff demonstrated a sufficient excuse in the form of a mistake of fact that the mortgage was satisfied upon the sale of the property. Plaintiff also moved within approximately six months of the court's order, which is a reasonable time under the circumstances (see e.g. Carrillo v New York City Tr. Auth., 39 AD3d 296 [1st Dept 2007]; compare Bank of N.Y. v Stradford, 55 AD3d 765 [2d Dept 2008]). Appellant's argument that restoring the action violates Real Property Actions and Proceedings Law § 1301(3) is unavailing. The trial court, in restoring this action, gave leave of court for this action to coexist with a separate action to foreclose on the mortgage, both of which are pending before the same Justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 31, 2018

CLERK