Wilmington motion in New York

2025Importantly, Wilmington did not adequately explain why it delayed nearly eight years before filing its motion, inter alia, to vacate the 2013 dismissal order ( see HSBC Bank USA, N.A. v MacPherson , 210 AD3d 966, 968 ; LaSalle Bank, N.A. v Delice , 175 AD3d 1283 , 1284).

2023Since leave to intervene should have been denied, it follows that the Supreme Court should have also denied those branches of Wilmington's motion which were for leave to interpose an answer and to toll the accrual of interest on the subject loan from July 2008 until September 2018 ( see generally CPLR 1012[a][3]; HSBC Bank USA, N.A. v MacPherson , 210 AD3d 966, 968 ; U.S. Bank, N.A. v Qurachi , 163 AD3d 888 , 889; NYCTL 1996-1 Trust v King , 304 AD2d 629, 631 ).

2023Co. of N.Y. v Information Display Tech. , 2 AD3d 701, 703 ; Perl v Aspromonte Realty Corp. , 143 AD2d 824, 825 ; see also Midland Mtge.

2023Co. of N.Y. v Information Display Tech. , 2 AD3d 701, 703 ; Perl v Aspromonte Realty Corp. , 143 AD2d 824, 825 ; see also Midland Mtge.

2023Since leave to intervene should have been denied, it follows that the Supreme Court should have also denied those branches of Wilmington's motion which were for leave to interpose an answer and to toll the accrual of interest on the subject loan from July 2008 until September 2018 ( see generally CPLR 1012[a][3]; HSBC Bank USA, N.A. v MacPherson , 210 AD3d 966, 968 ; U.S. Bank, N.A. v Qurachi , 163 AD3d 888 , 889; NYCTL 1996-1 Trust v King , 304 AD2d 629, 631 ).

2021Mellon v Fontana , 186 AD3d 445 ; U.S. Bank N.A. v Calabro , 175 AD3d 1451 , 1452).

2021However, the Supreme Court should have denied Wilmington's motion to confirm the referee's report and for a judgment of foreclosure and sale. "[T]he referee's findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records" ( Citimortgage, Inc. v Kidd , 148 AD3d 767, 768-769 ; see Bank of N.Y.

2019Sav. & Loan Assn. v Simon-Erdan , 67 AD3d 750 ).

2019Contrary to the defendants' further contention, upon the evidence that the mortgage and underlying debt were assigned to Wilmington, the Supreme Court providently exercised its discretion in granting that branch of Wilmington's motion which was to amend the caption to substitute it as the plaintiff in the place of JPMorgan ( see CPLR 1018; Brighton BK, LLC v Kurbatsky , 131 AD3d 1000, 1001 ; Citibank, N.A. v Van Brunt Props., LLC , 95 AD3d 1158 ; Deutsche Bank Trust Co., Ams. v Stathakis , 90 AD3d 983 ; Maspeth Fed.

2019Contrary to the defendants' further contention, upon the evidence that the mortgage and underlying debt were assigned to Wilmington, the Supreme Court providently exercised its discretion in granting that branch of Wilmington's motion which was to amend the caption to substitute it as the plaintiff in the place of JPMorgan ( see CPLR 1018; Brighton BK, LLC v Kurbatsky , 131 AD3d 1000, 1001 ; Citibank, N.A. v Van Brunt Props., LLC , 95 AD3d 1158 ; Deutsche Bank Trust Co., Ams. v Stathakis , 90 AD3d 983 ; Maspeth Fed.

2019Contrary to the defendants' further contention, upon the evidence that the mortgage and underlying debt were assigned to Wilmington, the Supreme Court providently exercised its discretion in granting that branch of Wilmington's motion which was to amend the caption to substitute it as the plaintiff in the place of JPMorgan ( see CPLR 1018; Brighton BK, LLC v Kurbatsky , 131 AD3d 1000, 1001 ; Citibank, N.A. v Van Brunt Props., LLC , 95 AD3d 1158 ; Deutsche Bank Trust Co., Ams. v Stathakis , 90 AD3d 983 ; Maspeth Fed.

2018Despite the aforementioned deficiencies in Wilmington's proof, the defendant failed to demonstrate, prima facie, JP Morgan's lack of standing ( see Filan v Dellaria, 144 AD3d 967, 975 ), or that the action should be dismissed based upon JP Morgan's failure to comply with conditions precedent ( cf. CitiMortgage, Inc. v Pappas, 147 AD3d at 902 ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 ).

2018Despite the aforementioned deficiencies in Wilmington's proof, the defendant failed to demonstrate, prima facie, JP Morgan's lack of standing ( see Filan v Dellaria, 144 AD3d 967, 975 ), or that the action should be dismissed based upon JP Morgan's failure to comply with conditions precedent ( cf. CitiMortgage, Inc. v Pappas, 147 AD3d at 902 ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 ).

2018Despite the aforementioned deficiencies in Wilmington's proof, the defendant failed to demonstrate, prima facie, JP Morgan's lack of standing ( see Filan v Dellaria, 144 AD3d 967, 975 ), or that the action should be dismissed based upon JP Morgan's failure to comply with conditions precedent ( cf. CitiMortgage, Inc. v Pappas, 147 AD3d at 902 ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 ).

2018Accordingly, the Supreme Court should have denied those branches of Wilmington's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer with affirmative defenses and counterclaims, and to appoint a referee, without regard to the sufficiency of the defendant's opposing papers ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).