Wells Fargo Bank, NA v. Rodriguez

203 A.D.3d 869

160 N.Y.S.3d 898 (Mem)

WELLS FARGO BANK, NA, etc., respondent,

v.Maria RODRIGUEZ, et al., defendants,E 4 St Realty, Inc., appellant.

2018–05536

Index No. 8542/11

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

Argued—November 29, 2021

March 9, 2022

Storch Law, P.C., Brooklyn, NY (Zvi A. Storch of counsel), for appellant.

Shapiro, DiCaro & Barak, LLC (Reed Smith LLP, New York, NY [Kerren B. Zinner and Andrew B. Messite ], of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant E 4 St Realty, Inc., appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), entered February 6, 2018. The order, insofar as appealed from, denied that branch of that defendant's motion which was to vacate an order and judgment of foreclosure and sale (one paper) of the same court dated March 21, 2016.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In April 2011, the plaintiff commenced this action against the defendant Maria Rodriguez, among others, to foreclose a mortgage on certain real property. The original notice of pendency expired in April 2014. In June 2014, Rodriguez allegedly conveyed title to the mortgaged property to E 4 St Realty, Inc. (hereinafter E 4 St), and the deed was recorded on July 10, 2014. The plaintiff filed another notice of pendency on October 30, 2014. On March 21, 2016, the Supreme Court issued an order and judgment of foreclosure and sale, inter alia, directing the sale of the property.

In November 2017, E 4 St moved to be substituted as a defendant as successor in interest to Rodriguez, to stay the foreclosure sale, and to vacate the notice of sale and the order and judgment of foreclosure and sale. In an order entered February 6, 2018, the Supreme Court granted that branch of E 4 St's motion which was to be substituted as a defendant as successor in interest to Rodriguez, but denied the other branches of the motion. E 4 St appeals from so much of the order as denied that branch of its motion which was to vacate the order and judgment of foreclosure and sale.

Contrary to E 4 St's contentions, the Supreme Court did not err in denying that branch of its motion which was to vacate the order and judgment of foreclosure and sale (see 1077 Madison St., LLC v. Dickerson, 197 A.D.3d 446, 447, 148 N.Y.S.3d 716 ). While it is undisputed that the notice of pendency had...