Bank motion in New York

2015Amotion to dismiss pursuant to CPLR 3211 (a) (1) is properly-granted where the documentary evidence submitted utterly refutes the factual allegations of the pleading and conclusively establishes a defense to the claim as a matter of law (see Attias v Costiera, 120 AD3d 1281 [2014]; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Kappa Dev.

2015Amotion to dismiss pursuant to CPLR 3211 (a) (1) is properly-granted where the documentary evidence submitted utterly refutes the factual allegations of the pleading and conclusively establishes a defense to the claim as a matter of law (see Attias v Costiera, 120 AD3d 1281 [2014]; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Kappa Dev.

2015In light of the foregoing, the appeal from so much of the order dated February 14, 2014, as denied that branch of the Bank’s motion which was for leave to renew its opposition to that branch of the plaintiff’s motion which was for summary judgment on the cause of action seeking to recover damages against it based on quantum meruit in the sum of $416,566.50 has been rendered academic (see People v Cook, 128 AD3d 928 [2015]; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 901 [2014]).

2015In light of the foregoing, the appeal from so much of the order dated February 14, 2014, as denied that branch of the Bank’s motion which was for leave to renew its opposition to that branch of the plaintiff’s motion which was for summary judgment on the cause of action seeking to recover damages against it based on quantum meruit in the sum of $416,566.50 has been rendered academic (see People v Cook, 128 AD3d 928 [2015]; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 901 [2014]).

2014Group, LLC, 35 Misc 3d 1206[A] , 2012 NY Slip Op 50576[U] [Sup Ct, NY County 2012], affd 106 AD3d 628 [1st Dept 2013]).

2014Group, LLC, 35 Misc 3d 1206[A] , 2012 NY Slip Op 50576[U] [Sup Ct, NY County 2012], affd 106 AD3d 628 [1st Dept 2013]).

2013Also, since MERS did not join in the Bank’s motion to dismiss the complaint, the Supreme Court erred in granting that branch of the Bank’s motion which was to dismiss the complaint insofar as asserted against MEES (see Jaroff v Board of Assessment Review of Town of Ossining, 89 AD2d 617 [1982]), and in denying, as academic, that branch of the plaintiffs cross motion which was to dismiss the 15th affirmative defense insofar as asserted by MERS.

2013Also, since MERS did not join in the Bank’s motion to dismiss the complaint, the Supreme Court erred in granting that branch of the Bank’s motion which was to dismiss the complaint insofar as asserted against MEES (see Jaroff v Board of Assessment Review of Town of Ossining, 89 AD2d 617 [1982]), and in denying, as academic, that branch of the plaintiffs cross motion which was to dismiss the 15th affirmative defense insofar as asserted by MERS.

1990Defendants’ unsubstantiated, conclusory and speculative assertions were insufficient to defeat the Bank’s motion for summary judgment (Ihmels v Kahn, 126 AD2d 701 ; Glassman v Catli, 111 AD2d 744 ).

1990Defendants’ unsubstantiated, conclusory and speculative assertions were insufficient to defeat the Bank’s motion for summary judgment (Ihmels v Kahn, 126 AD2d 701 ; Glassman v Catli, 111 AD2d 744 ).

1990Defendants’ unsubstantiated, conclusory and speculative assertions were insufficient to defeat the Bank’s motion for summary judgment (Ihmels v Kahn, 126 AD2d 701 ; Glassman v Catli, 111 AD2d 744 ).

1990Defendants’ unsubstantiated, conclusory and speculative assertions were insufficient to defeat the Bank’s motion for summary judgment (Ihmels v Kahn, 126 AD2d 701 ; Glassman v Catli, 111 AD2d 744 ).

1979Defendants opposed the Bank's motion, asserting that the Bank had failed to meet its statutory burden that "a mortgagee must on foreclosure bid in the property at a price that shall at least equal the market *560 value * * * or must go without any satisfaction of so much of the debt as equals the difference between the value as [subsequently] determined [by a court] and a lower price paid on a sale to a third party" ( National City Bank of N. Y. v Gelfert , 284 N.Y. 13, 21 , revd on other grounds 313 US 221 ).

1979Defendants opposed the Bank’s motion, asserting that the Bank had failed to meet its statutory burden that "a mortgagee must on foreclosure bid in the property at a price that shall at least equal the market value * * * or must go without any satisfaction of so much of the debt as equals the difference between the value as [subsequently] determined [by a court] and a lower price paid on a sale to a third party” (National City Bank of N Y. v Gelfert, 284 NY 13, 21 , revd on other grounds 313 US 221 ).

1979Defendants opposed the Bank's motion, asserting that the Bank had failed to meet its statutory burden that "a mortgagee must on foreclosure bid in the property at a price that shall at least equal the market *560 value * * * or must go without any satisfaction of so much of the debt as equals the difference between the value as [subsequently] determined [by a court] and a lower price paid on a sale to a third party" ( National City Bank of N. Y. v Gelfert , 284 N.Y. 13, 21 , revd on other grounds 313 US 221 ).

1979Defendants opposed the Bank’s motion, asserting that the Bank had failed to meet its statutory burden that "a mortgagee must on foreclosure bid in the property at a price that shall at least equal the market value * * * or must go without any satisfaction of so much of the debt as equals the difference between the value as [subsequently] determined [by a court] and a lower price paid on a sale to a third party” (National City Bank of N Y. v Gelfert, 284 NY 13, 21 , revd on other grounds 313 US 221 ).

1914In Schuyler National Bank v. Gadsden, 191 U. S. 451 , 24 Sup. Ct. 129, 48 L.

1914In Schuyler National Bank v. Gadsden, 191 U. S. 451 , 24 Sup. Ct. 129, 48 L.

1903While it is probable that the appellant’s lien, in so far as it is dependent upon the proceedings in the Surrogate’s Court, might be ascertained and determined there (Matter of Regan, 167 N. Y. 338, 342 ), the jurisdiction of that court cannot be exclusive, especially as those proceedings were incidental only to the gen eral'services agreed to be rendered which included a disclosure of the existence of the claim, its status and extent, and its collection by whatever lawful means and expenditure might be necessary.

1903While it is probable that the appellant’s lien, in so far as it is dependent upon the proceedings in the Surrogate’s Court, might be ascertained and determined there (Matter of Regan, 167 N. Y. 338, 342 , 60 N. E. 658 ), the jurisdiction of that court cannot be exclusive, especially as those proceedings were incidental only to the general services agreed to be rendered, which included a disclosure of the existence of the claim, its status and extent, and its collection by whatever lawful means and expenditure might be necessary.

2026Evelyn appeals.</p> <p>Pursuant to CPLR 1003, "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just." A mortgagor who has made an absolute conveyance of all his or her interest in the mortgaged premises is not a necessary party to a foreclosure action unless a deficiency judgment is sought (<i>see</i> <i>Citimortgage, Inc. v Warsi</i>, 212 AD3d 592, 594 ; <i>Nationstar Mtge., LLC v Foltishen Inst.</i>, 199 AD3d 1011, 1012 ; <i>PNC Bank, N.A. v Lefkowitz</i>, 185 AD3d 1069 , 1070).

2026Evelyn appeals.</p> <p>Pursuant to CPLR 1003, "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just." A mortgagor who has made an absolute conveyance of all his or her interest in the mortgaged premises is not a necessary party to a foreclosure action unless a deficiency judgment is sought (<i>see</i> <i>Citimortgage, Inc. v Warsi</i>, 212 AD3d 592, 594 ; <i>Nationstar Mtge., LLC v Foltishen Inst.</i>, 199 AD3d 1011, 1012 ; <i>PNC Bank, N.A. v Lefkowitz</i>, 185 AD3d 1069 , 1070).

2025Since the Bank was entitled to dismissal of the complaint, the Supreme Court also properly granted that branch of the Bank's motion which was to cancel the notice of pendency filed against the subject property ( see id. § 6514[a]; Bayview Loan Servicing, LLC v Starr-Klein , 193 AD3d 807, 808 ; Citibank, N.A. v Herman , 125 AD3d 587, 589 ).

2025Since the Bank was entitled to dismissal of the complaint, the Supreme Court also properly granted that branch of the Bank's motion which was to cancel the notice of pendency filed against the subject property ( see id. § 6514[a]; Bayview Loan Servicing, LLC v Starr-Klein , 193 AD3d 807, 808; Citibank, N.A. v Herman , 125 AD3d 587, 589).

2025A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion ( see id. § 5015[a][1]; NYCTL 1998-2 Trust v DR 226 Holdings, LLC , 192 AD3d 900 ).

2024A plaintiff moving for summary judgment in an action to foreclose a mortgage establishes its prima facie case by producing the note, the mortgage, and evidence of default ( see U.S. Bank Trust, N.A. v Smith , 217 AD3d 899, 899 ; BNH Milf, LLC v Milford St.

2024Mellon v Giammona , 219 AD3d at 439; U.S. Bank Trust, N.A. v Smith , 217 AD3d at 900 ; JPMorgan Chase Bank, N.A. v Grennan , 175 AD3d 1513 , 1516-1517).

2024In his affidavit submitted in support of U.S. Bank's motion, Bennett averred that he was personally familiar with Rushmore's record-keeping practices and that, based on his review of Rushmore's business records, the borrower "defaulted under the terms of the loan documents by failing to make the monthly installment due on January 1, 2015 and has remained in default to the present date." However, Bennett's assertion regarding the borrower's alleged default constituted inadmissible hearsay, as he failed to annex to his affidavit the business records on which he relied ( see U.S. Bank N.A. v Chri

2023Accordingly, the Supreme Court should have granted those branches of U.S. Bank's motion which were for leave to intervene in the action and for leave to file an answer, and denied those branches of the plaintiffs' cross-motion which were, in effect, for leave to enter a default judgment against U.S. Bank and to direct the Clerk of Suffolk County to cancel and discharge of record the subject mortgage ( see Bank of Am., NA v Nocella , 194 AD3d at 902 ; ABM Resources Corp. v Doraben, Inc. , 89 AD3d 773, 774 ).

2023Moreover, since U.S. Bank's motion, inter alia, for leave to intervene was made before a judgment was issued, the plaintiffs were not prejudiced by the timing of the motion ( see Bank of Am., NA v Nocella , 194 AD3d 900, 901-902 ; cf. Federal Natl.

2023Accordingly, the Supreme Court should have granted those branches of U.S. Bank's motion which were for leave to intervene in the action and for leave to file an answer, and denied those branches of the plaintiffs' cross-motion which were, in effect, for leave to enter a default judgment against U.S. Bank and to direct the Clerk of Suffolk County to cancel and discharge of record the subject mortgage ( see Bank of Am., NA v Nocella , 194 AD3d at 902 ; ABM Resources Corp. v Doraben, Inc. , 89 AD3d 773, 774 ).

2023Trust Co. , 210 AD3d 613 ).

2020The 2009 action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one ( see WM Specialty Mortg., LLC v Palazzollo , 145 AD3d 714, 715 ; JPMorgan Chase Bank, N.A. v Mehrnia , 143 AD3d 946, 947 ).