Cadle Co. II, Inc. v. Campbell

Appellate Division of the Supreme Court of New York

Cadle Co. II, Inc. v. Campbell

289 A.D.2d 68, 733 N.Y.S.2d 866, 2001 N.Y. App. Div. LEXIS 12121

Appellate Division of the Supreme Court of the State of New York·Decided December 11, 2001·Published

Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about January 30, 2001, which denied plaintiff’s motion for the issuance of a warrant of arrest pursuant to CPLR 2308 (a), unanimously reversed, on the law, without costs, and plaintiffs motion granted.

The motion court improvidently exercised its discretion in denying issuance of the warrant. Defendant has failed to appear at every juncture of this five-year-old mortgage foreclosure action and has ignored a judicial subpoena and a contempt order. Given this conduct and the likelihood that it will continue, the CPLR 2308 (a) warrant should issue inasmuch as it is the proper remedy for such circumstances (see, Hefte v Bellin, 137 AD2d 406, 408; Matter of Brown v Eimicke, 144 AD2d 460, 461) and plaintiff may otherwise be unable to enforce its deficiency judgment. Concur — Nardelli, J. P., Williams, Mazzarelli, Lerner and Friedman, JJ.

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Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about January 30, 2001, which denied plaintiff’s motion for the issuance of a warrant of arrest pursuant to CPLR 2308 (a), unanimously reversed, on the law, without costs, and plaintiffs motion granted.

The motion court improvidently exercised its discretion in denying issuance of the warrant. Defendant has failed to appear at every juncture of this five-year-old mortgage foreclosure action and has ignored a judicial subpoena and a contempt order. Given this conduct and the likelihood that it will continue, the CPLR 2308 (a) warrant should issue inasmuch as it is the proper remedy for such circumstances (see, Hefte v Bellin, 137 AD2d 406, 408; Matter of Brown v Eimicke, 144 AD2d 460, 461) and plaintiff may otherwise be unable to enforce its deficiency judgment. Concur — Nardelli, J. P., Williams, Mazzarelli, Lerner and Friedman, JJ.

Cadle Co. II, Inc. v. Campbell, 289 A.D.2d 68, 733 N.Y.S.2d 866, 2001 N.Y. App. Div. LEXIS 12121 (N.Y. Ct. App. 2001).

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289 A.D.2d 68 (Cadle Co. II, Inc. v. Campbell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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