Summary
granting motion to amend a notice of pendency
Summary of this case from RL 900 Park, LLC v. EnderOpinion
06-22-2016
BELTWAY CAPITAL, LLC, appellant, v. Virginia GUTIERREZ, et al., defendants; James Bianco, et al., intervenors defendants-respondents.
Law Offices of Jeffrey S. Greene, P.C., White Plains, NY, for appellant. Miller, Rosado & Algios, LLP, Mineola, NY (Neil A. Miller of counsel), for intervenors defendants-respondents.
Law Offices of Jeffrey S. Greene, P.C., White Plains, NY, for appellant.
Miller, Rosado & Algios, LLP, Mineola, NY (Neil A. Miller of counsel), for intervenors defendants-respondents.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered September 24, 2014, which denied its motion pursuant to CPLR 2001 to amend the notice of pendency, judgment of foreclosure and sale, and all other documents in the action, nunc pro tunc, to correct the legal description of the foreclosed property.
ORDERED that the order is reversed, on the law, with costs, and the motion pursuant to CPLR 2001 is granted.
After a judgment of foreclosure and sale was entered on March 14, 2011, and the foreclosure sale held on June 7, 2011, the plaintiff moved pursuant to CPLR 2001 to correct the notice of pendency filed on March 7, 2008, the judgment of foreclosure and sale, and all other documents in the foreclosure action, nunc pro tunc, because the legal description of the foreclosed property referenced an incorrect tax description with respect to the lots. The incorrect tax description provided in the documents was section 32, block 499, lot 121, whereas the correct tax description for the foreclosed property was section 32, block 499, lots 121 and 123.
The Supreme Court erred in denying the plaintiff's motion pursuant to CPLR 2001 (cf. Wells Fargo Bank, NA v. Gonsalves, 44 Misc.3d 531, 535, 987 N.Y.S.2d 561 ). “CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” (U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908, 910, 971 N.Y.S.2d 336 ; see Deutsche Bank Natl. Trust Co. v. Lawson, 134 A.D.3d 760, 761, 20 N.Y.S.3d 624 ). Prejudice can be considered in determining whether a mistake in indexing a notice of pendency can be disregarded under CPLR 2001 (see Wells Fargo Bank, NA v. Gonsalves, 44 Misc.3d at 536, 987 N.Y.S.2d 561 ). Here, however, given the respondents' actual knowledge of the notice of pendency and the foreclosure proceeding, they cannot claim that they would be prejudiced by disregarding the omission of lot 123 from the description of the property on the documents (see Stephens v. Snitow, 95 A.D.2d 806, 807, 463 N.Y.S.2d 528 ; cf. Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1272, 1273, 945 N.Y.S.2d 402 ). Accordingly, the Supreme Court should have granted the plaintiff's motion to amend the notice of pendency, judgment of foreclosure and sale, and all other documents in the action, nunc pro tunc, to correct the legal description of the foreclosed property.