Bank of New York Mellon v. Casale

Bank of N.Y. Mellon v Casale (2016 NY Slip Op 04164)

Bank of N.Y. Mellon v Casale

2016 NY Slip Op 04164

Decided on June 1, 2016

Appellate Division, Second 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 June 1, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.

2015-01198
(Index No. 3220/10)

[*1]Bank of New York Mellon, etc., respondent,

v

Ralph Casale, et al., appellants, et al., defendants.

Kim DSouza, Newburgh, NY, for appellant.

Bryan Cave LLP, New York, NY (Suzanne M. Berger and Elizabeth J. Goldberg of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Ralph Casale and Janice Casale appeal from a judgment of foreclosure and sale of the Supreme Court, Dutchess County (Rosa, J.), entered July 10, 2014, which, upon their failure to answer the complaint, and upon an order of the same court dated January 14, 2013, inter alia, granting the plaintiff's motion to vacate an order of reference of the same court dated October 8, 2010, and for a new order of reference, is in favor of the plaintiff and against them.

ORDERED that the judgment of foreclosure and sale is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage. In an order dated October 8, 2010, the Supreme Court granted the plaintiff's motion for an order of reference, upon the appellants' failure to answer the complaint.

The plaintiff subsequently moved to vacate the order of reference dated October 8, 2010, and for a new order of reference, to comply with the requirements of the newly implemented Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts. In an order dated January 14, 2013, the Supreme Court, among other things, granted the plaintiff's motion to vacate the order of reference dated October 8, 2010, and for a new order of reference.

The Supreme Court subsequently appointed a new referee to compute the amount due. After the referee issued a report, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The court granted the plaintiff's motion, and a judgment of foreclosure and sale in favor of the plaintiff and against the appellants was entered on July 10, 2014.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to vacate the order of reference dated October 8, 2010, and for a new order of reference (see U.S. Bank Natl. Assn. v Ahmed, 137 AD3d 1106; Bank of N.Y. v Stein, 130 AD3d 552, 552-553; HSBC Bank USA, N.A. v Forde, 124 AD3d 840, 840-841; see also U.S. Bank N.A. v Eaddy, 109 AD3d 908, 909-910).

Furthermore, the Supreme Court properly granted the plaintiff's motion for a [*2]judgment of foreclosure and sale. Contrary to the appellants' contention, they received adequate notice of the motion (see generally Paulus v Christopher Vacirca, Inc., 128 AD3d 116), and the alleged defects in the plaintiff's supporting papers did not, under the circumstances, warrant denial of the motion inasmuch as a substantial right of the appellants was not prejudiced thereby (see CPLR 2001; cf. U.S. Bank N.A. v Eaddy, 109 AD3d at 909-910).

The appellants' remaining contentions are not properly before this Court, are without merit, or need not be reached in light of our determination.

AUSTIN, J.P., COHEN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court