Associated Financial Services, Inc. v. Davis

183 A.D.2d 686, 583 N.Y.S.2d 274, 1992 N.Y. App. Div. LEXIS 6534

Opinion

— In an action, inter alia, to foreclose a mortgage, the defendant Eileen M. Davis appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered April 5, 1990, which (1) granted the motion of the defendant Margaret F. Jirak to appoint a Referee in a surplus money proceeding, and (2) in effect, denied the cross motion of the appellant to be awarded the surplus moneys as holder of the equity of redemption.

Ordered that the order is affirmed, without costs or disbursements.

The failure to move to appoint a Referee in the surplus money proceeding within the time period prescribed by RPAPL 1361 (2) is a mere irregularity which, in the absence of prejudice to any substantial right of a party, may be disregarded (see, CPLR 2001, 2004; Fidelity Bond & Mtge. Co. v Lucas, 135 AD2d 778; Sibley Realty Corp. v Schwab, 11 Misc 2d 997). Thus, the court properly exercised its discretion in disregarding the statutory time limitation (see, CPLR 2001) and granting the motion to appoint a Referee in the surplus money proceeding (see, CPLR 2004). Thompson, J. P., Lawrence, Miller and Ritter, JJ., concur.