Summary
This Appellate Division decision reverses a lower court order granting the plaintiff's motion to restore a mortgage foreclosure action to the active calendar. The court found that because the foreclosed property had already been sold at auction while a prior appeal was pending, and the plaintiff conceded it sought no further foreclosure judgment or sale, restoration served no legitimate purpose. Consequently, the motion to restore was properly denied.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court should have denied the motion to restore the foreclosure action to the active calendar given that the foreclosure sale had been completed and the prior judgment was vacated.
- Whether vacating the foreclosure judgment also vacates the foreclosure sale.
Holdings
- The motion to restore the foreclosure action to the active calendar must be denied because the foreclosure sale has been completed and the underlying judgment was vacated, rendering restoration unnecessary.
Key quotations
“Thus, as the defendants contend, the ultimate objective of the foreclosure action has been achieved, and restoration of the action to the active calendar would serve no legitimate purpose (see McWhite v I & I Realty Group, LLC, 210 AD3d 1069, 1072).”
“While this Court's decision and order on the prior appeal had the effect of vacating the order and judgment of foreclosure and sale, the decision and order did not have the effect of setting aside the foreclosure sale of the property (see Iovino v Deutsche Bank Natl. Trust Co., 217 AD3d 848, 850).”
Factual background
The plaintiff sought foreclosure of a property that was sold at auction in February 2019 while an earlier appeal was pending. No stay was issued. After the appellate court vacated the foreclosure judgment, the plaintiff moved to restore the action to the active calendar, and the trial court granted the motion. The defendants appealed the restoration order.
Procedural history
The Supreme Court, Kings County, originally vacated the judgment of foreclosure and sale but did not set aside the sale itself. The property was sold at auction in February 2019 while the prior appeal was pending. The plaintiff later moved to restore the action to the active calendar; the trial court granted that motion. The defendants appealed that order.