Bank of N.Y. Mellon Trust Co. N.A. v. Vitucci
This text of Bank of N.Y. Mellon Trust Co. N.A. v. Vitucci (Bank of N.Y. Mellon Trust Co. N.A. v. Vitucci) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Bank of N.Y. Mellon Trust Co. N.A. v Vitucci
2026 NY Slip Op 04366
July 9, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
The Bank of New York Mellon Trust Company National Association, etc., Plaintiff-Appellant,
v
Jerry Vitucci, Defendant-Respondent, Hudson Valley Bank, N.A., et al. Defendants.
Decided and Entered: July 09, 2026
Index No. 381246/11|Appeal No. 7035|Case No. 2025-03467|
Before: Webber, J.P., Kennedy, Friedman, González, Shulman, JJ.
McCabe, Weisberg & Conway, LLC, Port Chester (Robert Yusko of counsel), for appellant.
Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered March 11, 2025, which denied plaintiff's motion for renewal of its motion to vacate its default, restore the action to the active calendar, appoint a temporary receiver, and issue a temporary restraining order, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying plaintiff's motion to renew. Plaintiff did not submit newly discovered facts that existed but were unknown to it when it made its original motion. Rather, plaintiff asserted on its renewal motion that the original order to show cause had since been properly electronically filed and that the death of defendant borrower Jerry Vitucci divested the court of jurisdiction to issue the original order. However, Vitucci's death was not newly discovered, nor was it unknown to plaintiff at the time of the original motion. On the contrary, by its own account, plaintiff was aware of Vitucci's 2014 death as early as October 6, 2015, when it was informed of the death at a hearing. Plaintiff also did not offer a reasonable justification for its failure to include the purportedly new facts on the original motion (CPLR 2221[e][2] and [3]; Mehler v Jones, 181 AD3d 535, 535 [1st Dept 2020]; Lower E. Side II Assoc., L.P. v 349 E. 10th St. LLC, 118 AD3d 607, 607 [1st Dept 2014]).
In any event, the motion fails on the merits. Plaintiff failed to establish how Vitucci's death would have affected the merits of this case, nor did it establish, under the circumstances presented here, that a stay of the proceedings was mandated pending substitution of a legal representative under CPLR 1015(a) (see Matter of London, 200 AD3d 493, 493 [1st Dept 2021]). Before Vitucci's death, the mortgage was in default, this action had been commenced, and plaintiff had already been granted summary judgment on its complaint as against Vitucci.
We have considered plaintiff's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: July 9, 2026
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