Bank of New York v. Midland Avenue Development Co.

New York Supreme Court

Bank of New York v. Midland Avenue Development Co.

171 Misc. 2d 711

CourtNew York Supreme Court

DecidedJanuary 8, 1997

StatusPublished

Cited by1 cases

This text of 171 Misc. 2d 711 (Bank of New York v. Midland Avenue Development Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bank of New York v. Midland Avenue Development Co., 171 Misc. 2d 711 (N.Y. Super. Ct. 1997).

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Opinion

OPINION OF THE COURT

James R. Cowhey, J.

Motion by plaintiff to serve a second amended complaint.

This motion is disposed of as follows: Since this foreclosure action has been rendered moot by the judgment rendered on May 2, 1996 (Rudolph, J.) for the City of Rye in its tax foreclosure action of the same property, plaintiff’s application to convert this foreclosure action into an action at law to recover on the note by amending the foreclosure complaint and filing a second amended complaint is denied as plaintiff’s sole recourse is to commence a separate action on the note (European Am. Bank v Perspective Dev. Corp., 220 AD2d 717; RPAPL 1301 [3]). Since the alleged default occurred in January 1990, said action would be barred by the six-year Statute of Limitations.

The cross motion was not considered because it was not served pursuant to CPLR 2215. Opposition papers filed on or before the return date were considered by the court (W.I.L.D. W.A.T.E.R.S. v Martinez, 148 AD2d 847; CPLR 2214).

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OPINION OF THE COURT

James R. Cowhey, J.

Motion by plaintiff to serve a second amended complaint.

This motion is disposed of as follows: Since this foreclosure action has been rendered moot by the judgment rendered on May 2, 1996 (Rudolph, J.) for the City of Rye in its tax foreclosure action of the same property, plaintiff’s application to convert this foreclosure action into an action at law to recover on the note by amending the foreclosure complaint and filing a second amended complaint is denied as plaintiff’s sole recourse is to commence a separate action on the note (European Am. Bank v Perspective Dev. Corp., 220 AD2d 717; RPAPL 1301 [3]). Since the alleged default occurred in January 1990, said action would be barred by the six-year Statute of Limitations.

The cross motion was not considered because it was not served pursuant to CPLR 2215. Opposition papers filed on or before the return date were considered by the court (W.I.L.D. W.A.T.E.R.S. v Martinez, 148 AD2d 847; CPLR 2214).

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171 Misc. 2d 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-midland-avenue-development-co-nysupct-1997.

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