Bank of New York v. Midland Avenue Development Co.

Mar 2, 1998
Versions:248 A.D.2d 342
669 N.Y.S.2d 622
1998 N.Y. App. Div. LEXIS 2029

—In an action, inter alia, to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from (1) so much of аn order of the Supreme Court, Westchester County (Cowhey, J.), entered January 9, 1997, as denied its motion for leave to file and serve a second amended verified complaint, and (2) so muсh of an order of the same court, dated April 11, 1997, as (a) upon, in effect, granting re-argument, аdhered to the original determination and (b) granted the defendants’ cross motion to dismiss the aсtion in its entirety.

Ordered that the appeal from the order entered'January 9, 1997, is dismissed, as that order was superseded by the order dated April 11, 1997, made upon reargument; and it is further,

Ordered that thе order dated April 11, 1997, is reversed insofar as appealed from, on the law, the plaintiff’s motion for leave to file and ‍​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​​​‌​​​‌​‌​‍serve a second amended verified complaint is granted, and the defendants’ cross motion to dismiss the action is denied; and it is further,

Ordered that the plaintiff’s time to file and serve a second amended verified complaint is extended until 30 days after service upon it of a copy of this decision and order, with notice of entry; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

In May 1990, the plaintiff commenced this action against Midland Avenue Development Co. (hereinafter Midland) and certain of its partners. The first cause of action sought a judgment of foreclоsure and sale on what remained of certain mortgaged premises (a portion of which had been sold with the plaintiff’s permission). The second cause of action sought to recover on the guarantees of three of the alleged partners. In *343May 1994, the plaintiff filed аn amended complaint naming eight ‍​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​​​‌​​​‌​‌​‍additional alleged partners of Midland as defendants.

On Dеcember 9, 1994, the City of Rye commenced an action to foreclose on a tax lien on the subject property. On May 20, 1996, a deed was issued to the City of Rye as the fee owner оf the mortgaged premises, effectively extinguishing the plaintiffs lien.

On June 19, 1996, the plaintiff moved to file аnd serve a second amended verified complaint wherein it abandoned its first cause оf action for foreclosure and sale and sought instead judgment on the underlying note. The plaintiff continued to assert its claim" on the guarantees. In the order at issue on this appeаl, the Supreme Court, upon reargument, inter alia, adhered to its prior determination denying the plaintiffs mоtion to file and serve a second amended verified ‍​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​​​‌​​​‌​‌​‍complaint and granted the defеndants’, cross motion to dismiss the action. The court held, inter alia, that the tax lien foreclosure had “еxtinguished” the plaintiffs foreclosure action, and thus that the plaintiffs sole recourse would be to file a new and separate action on the note. However, the court noted, such a new action would be barred by the relevant six-year Statute of Limitations (see, CPLR 213 [4]). The court further noted that because the plaintiffs entire foreclosure action had been “extinguishеd” by the tax lien foreclosure, the plaintiffs claim for foreclosure was not one to whiсh the claim in the proposed second amended verified complaint for judgment on thе note could “relate back” within the meaning of CPLR 203.

In European Am. Bank v Perspective Dev. Corp. (220 AD2d 717, 718), this Court held that once a tax lien foreсlosure of the subject property had “moot[ed]” the plaintiff-mortgagee’s lien ‍​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​​​‌​​​‌​‌​‍in a pending foreclosure action, the plaintiffs proper course was to commencе an action at law on the underlying note (see also, Lehman v Roseanne Investors Corp., 106 AD2d 617). Here, we find no controlling significance to the fact that the plaintiff sought such relief by leave to amend its complaint, rather than by commencement of a new action (see, Levy v Jones, 269 App Div 295). Because there is no prejudice or surprise to the defendants, such leave should have been granted (see, CPLR 3025). Indeed, although the plaintiffs mortgage liеn was extinguished ‍​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‌‌‌​‌​​​‌​​​‌​‌​‍by the tax lien foreclosure, its foreclosure action was not (see, Stein v Blatte, 118 Misc 2d 633; Culliford v Weingrad, 196 Misc 86, affd 275 App Div 954; cf., Frank v Davis, 135 NY 275; Levy v Jones, supra; McRae v Hummel, 250 App Div 873; Weisel v Hagdahl Realty Corp., 241 App Div 314). Thus, the allegations in the amended complaint, which gave *344notice of the transactions and occurrences giving rise to the plaintiffs claim on the note, and which were timely interposed, were viable for purposes of the “relation back” doctrine of CPLR 203 (f). Thus, the second amendеd verified complaint was not untimely. Indeed, we note, even assuming, arguendo, that the tax lien foreclosure had “terminated” the plaintiffs foreclosure action for all purposеs, the second amended verified complaint would have been timely had it been filed as a new action at the time that the plaintiff made its motion for leave to amend (see, CPLR 205 [a]).

Rosenblatt, J. P., Miller, Ritter and Krausman, JJ., concur.

[See, 171 Misc 2d 711.]