Opinion
10474N Index 850037/15
12-03-2019
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CMALT REMIC, 2007 A4 PRAA–REMIC PASS THROUGH CERTIFICATES, SERIES 2007 A4, Plaintiff–Respondent, v. Mindy N. CHAIT also known as Mindy Chait, Defendant–Appellant, Joshua Kirschenbaum, et al., Defendants.
Richland & Falkowski, PLLC, Astoria (Michal Falkowski of counsel), for appellant. Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Richland & Falkowski, PLLC, Astoria (Michal Falkowski of counsel), for appellant.
Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Friedman, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 11, 2018, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its foreclosure complaint, and denied defendant Mindy Chait's cross motion to dismiss the complaint, unanimously affirmed, without costs.
The court properly determined that while the foreclosure action commenced in 2012 by plaintiff's predecessor-in-interest was not formally discontinued when it was marked off the calendar and "disposed" of in 2013, the record supports a finding that the prior action was inactive and effectively abandoned and therefor not pending (see Bank of N.Y. Mellon v. Adam P10tch LLC , 162 A.D.3d 502, 79 N.Y.S.3d 135 [1st Dept. 2018] ). When a foreclosure action is "not formally discontinued, the effective abandonment of that action is a de facto discontinuance which militates against dismissal of the present action pursuant to RPAPL 1301(3)" ( Old Republic Natl. Tit. Ins. Co. v. Conlin , 129 A.D.3d 804, 805, 13 N.Y.S.3d 99 [2d Dept. 2015] [internal quotation marks omitted] ). Accordingly, at the time this action was commenced in 2015, RPAPL 1301(3) did not require that this action be dismissed (see id. ; compare U.S. Bank N.A. v. Beymer , 161 A.D.3d 543, 544, 77 N.Y.S.3d 380 [1st Dept. 2018] ).
We have considered defendant Chait's remaining arguments and find them unavailing.