Opinion
6742 Index 850235/15
05-31-2018
U.S. BANK NA, etc., Plaintiff–Respondent, v. Howard WARSHAW, et al., Defendants. Arusa Trade & Finance, Nonparty Appellant.
Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant. Eckert Seamans Cherin & Mellott, LLC, White Plains (Geraldine A. Cheverko of counsel), for respondent.
Paula A. Miller, P.C., Smithtown (Paula A. Miller of counsel), for appellant.
Eckert Seamans Cherin & Mellott, LLC, White Plains (Geraldine A. Cheverko of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Kahn, Moulton, JJ.
Order, Supreme Court, New York County (Anthony Cannataro, J.), entered March 13, 2017, which granted plaintiff's motion to vacate an order directing that this mortgage foreclosure action be discontinued and the lis pendens vacated, and restored the action, unanimously affirmed, with costs.
The court providently exercised its discretion in granting plaintiff's motion to vacate the dismissal order (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ). Plaintiff demonstrated a sufficient excuse in the form of a mistake of fact that the mortgage was satisfied upon the sale of the property. Plaintiff also moved within approximately six months of the court's order, which is a reasonable time under the circumstances (see e.g. Carrillo v. New York City Tr. Auth., 39 A.D.3d 296, 833 N.Y.S.2d 95 [1st Dept. 2007] ; compare Bank of N.Y. v. Stradford, 55 A.D.3d 765, 869 N.Y.S.2d 554 [2d Dept. 2008] ). Appellant's argument that restoring the action violates Real Property Actions and Proceedings Law § 1301(3) is unavailing. The trial court, in restoring this action, gave leave of court for this action to coexist with a separate action to foreclose on the mortgage, both of which are pending before the same Justice.