Opinion
14512 Index No. 110781/10 Case No. 2020-01160
10-28-2021
HSBC MORTGAGE CORPORATION (USA), Plaintiff–Appellant, v. MARBLE HILL AT 29, INC., Defendant–Respondent, Abdelrahman Harb also known as Abdel Rahman Harb etc., et al., Nonparty Defendants.
D.J. & J.A. Cirando, PLLC, Syracuse (John A. Cirando of counsel), for appellant. Brian McCaffrey, P.C., Jamaica (Brian McCaffrey of counsel), for respondent.
D.J. & J.A. Cirando, PLLC, Syracuse (John A. Cirando of counsel), for appellant.
Brian McCaffrey, P.C., Jamaica (Brian McCaffrey of counsel), for respondent.
Renwick, J.P., Gonza´lez, Kennedy, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 26, 2019, which, to the extent appealed from, denied plaintiff's motions for an order of reference and to vacate an earlier dismissal of this action, and granted intervenor defendant Marble Hill at 29 Inc.'s cross motion to dismiss the foreclosure complaint, unanimously affirmed, without costs.
The court properly granted Marble Hill at 29 Inc.'s cross motion pursuant to CPLR 1013 to intervene in this mortgage foreclosure action, since, having obtained title to the subject property from the mortgage borrower by quitclaim deed, Marble Hill had a real and substantial interest in the outcome of the action (see generally Capital Resources Co. v. Prewitt, 266 A.D.2d 176, 697 N.Y.S.2d 320 [2d Dept. 1999] ).
The record shows that the action was dismissed on May 21, 2013, after plaintiff failed to appear for a mandatory court conference (see 22 NYCRR 202.27 ). Contrary to plaintiff's contention, whether or not the court issued an order of dismissal, the complaint was dismissed ( Saunders v. Riverbay Corp., 17 A.D.3d 137, 791 N.Y.S.2d 828 [1st Dept. 2005] ; American Cont. Props., Inc v. Lynn, 32 A.D.3d 700, 822 N.Y.S.2d 1 [1st Dept. 2006], lv dismissed 7 N.Y.3d 921, 827 N.Y.S.2d 690, 860 N.E.2d 992 [2006] ). In moving, five years later, for leave to vacate the dismissal, plaintiff failed to proffer a reasonable excuse for its default (see Saunders, 17 A.D.3d 137, 791 N.Y.S.2d 828 ).