Wells Fargo Bank, N.A. v. Rindenow

186 A.D.3d 782

127 N.Y.S.3d 343 (Mem)

WELLS FARGO BANK, N.A., respondent,

v.Elisa RINDENOW, etc., appellant, et al., defendants.

2018–12791

Index No. 806/10

Supreme Court, Appellate Division, Second Department, New York.

Argued - May 19, 2020

August 19, 2020

Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for appellant.

RAS Boriskin, LLC, Westbury, N.Y. (Joseph F. Battista and GreenbergTraurig, LLP [Adam P. Hartley and Patrick G. Broderick ], of counsel), for respondent.

RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Elisa Rindenow appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 20, 2018. The order, insofar as appealed from, in effect, denied, as academic, that branch of that defendant's cross motion which was pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court entered May 22, 2012, which granted the plaintiff's unopposed motion pursuant to CPLR 3211(a) to dismiss that defendant's affirmative defenses and counterclaims.

ORDERED that the order entered July 20, 2018, is modified, on the law, by deleting the provision thereof, in effect, denying as academic that branch of the cross motion of the defendant Elisa Rindenow which was pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court entered May 22, 2012, and substituting therefore a provision denying that branch of the cross motion as untimely; as so modified, the order entered July 20, 2018, is affirmed insofar as appealed from, with costs to the plaintiff.

In 2010, the plaintiff commenced this action against the defendant Elisa Rindenow (hereinafter the defendant) and others to foreclose a mortgage encumbering real property located in Lawrence. After the defendant served an answer, the plaintiff moved pursuant to CPLR 3211(a) to dismiss the affirmative defenses and counterclaims asserted in the defendant's answer. The defendant failed to oppose that motion, which was granted by order entered May 22, 2012. By notice of motion dated August 7, 2017, the plaintiff moved, among other things, for an order of reference. By notice of cross motion dated March 28, 2018, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate her default in opposing the plaintiff's motion pursuant to CPLR 3211(a) to dismiss her affirmative defenses and counterclaims. In an order entered July 20, 2018, the Supreme Court, inter alia, in effect, denied as academic that branch of the defendant's cross motion which was to vacate her default. The defendant appeals.

We disagree with the Supreme Court's determination denying, as academic, that branch of the defendant's cross motion which was to vacate her default in opposing the plaintiff's prior motion. Nothing in the court's July 20, 2018, order negated or otherwise affected the May 22, 2012, order, granting the plaintiff's motion pursuant to CPLR 3211(a) to dismiss the defendant's affirmative defenses and counterclaims. Since that order remains in effect, the defendant's cross motion to vacate her default in opposing the motion to dismiss is not academic.

Although the Supreme Court, in effect, denied the defendant's cross motion as academic, "since the merits of the cross motion were litigated by the parties in the Supreme Court and briefed by the parties in this Court, we address the cross motion in the interest of judicial economy" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Ewers v. Columbia Hgts. Realty, LLC, 44 A.D.3d 608, 609, 844 N.Y.S.2d 45 ).

CPLR 5015(a)(1) provides, in relevant part, that the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, upon the ground of "excusable default, if such motion is made within one...