Fidelity Bond & Mortgage Co. v. Lucas

Appellate Division of the Supreme Court of New York

Fidelity Bond & Mortgage Co. v. Lucas

135 A.D.2d 778, 523 N.Y.S.2d 125, 1987 N.Y. App. Div. LEXIS 52721

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 1987

StatusPublished

Cited by4 cases

This text of 135 A.D.2d 778 (Fidelity Bond & Mortgage Co. v. Lucas) 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.

Bluebook

Fidelity Bond & Mortgage Co. v. Lucas, 135 A.D.2d 778, 523 N.Y.S.2d 125, 1987 N.Y. App. Div. LEXIS 52721 (N.Y. Ct. App. 1987).

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Opinion

— In an action to foreclose a mortgage, the defendant Arlene Lucas appeals from an order of the Supreme Court, Westchester County (Buell, J.), dated July 14, 1986, which denied her motion to set aside the sale and granted the plaintiffs cross motion to confirm the Referee’s report.

Ordered that the order is affirmed, with one bill of costs payable to Robert A. Karas, Jean F. Karas, and Eve Bunting, appearing separately and filing separate briefs.

The failure to move to confirm a Referee’s report within the time period prescribed by RPAPL 1355 (2) is a mere irregularity which, in the absence of prejudice to any substantial right of a party, may be disregarded (see, Dime Sav. Bank v Sherman, 64 Misc 2d 457; Sibley Realty Corp. v Schwab, 11 Misc 2d 997). Although the time limitation of RPAPL 1355 (2) had expired, the appellant failed to show that any prejudice would result if the plaintiff were permitted to move to confirm the report. Thus, the court properly exercised its discretion in disregarding the statutory time limitation (see, CPLR 2001), and extending the time for the plaintiff to bring its cross motion (see, CPLR 2004).

Any application by the Referee for attorneys’ fees in connection with this appeal may be made to the trial court, if the Referee be so advised. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.

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— In an action to foreclose a mortgage, the defendant Arlene Lucas appeals from an order of the Supreme Court, Westchester County (Buell, J.), dated July 14, 1986, which denied her motion to set aside the sale and granted the plaintiffs cross motion to confirm the Referee’s report.

Ordered that the order is affirmed, with one bill of costs payable to Robert A. Karas, Jean F. Karas, and Eve Bunting, appearing separately and filing separate briefs.

The failure to move to confirm a Referee’s report within the time period prescribed by RPAPL 1355 (2) is a mere irregularity which, in the absence of prejudice to any substantial right of a party, may be disregarded (see, Dime Sav. Bank v Sherman, 64 Misc 2d 457; Sibley Realty Corp. v Schwab, 11 Misc 2d 997). Although the time limitation of RPAPL 1355 (2) had expired, the appellant failed to show that any prejudice would result if the plaintiff were permitted to move to confirm the report. Thus, the court properly exercised its discretion in disregarding the statutory time limitation (see, CPLR 2001), and extending the time for the plaintiff to bring its cross motion (see, CPLR 2004).

Any application by the Referee for attorneys’ fees in connection with this appeal may be made to the trial court, if the Referee be so advised. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.

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Bluebook (online)

135 A.D.2d 778, 523 N.Y.S.2d 125, 1987 N.Y. App. Div. LEXIS 52721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidelity-bond-mortgage-co-v-lucas-nyappdiv-1987.

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