Hausch v. Topper

221 A.D.2d 591, 635 N.Y.S.2d 496, 1995 N.Y. App. Div. LEXIS 12439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1995
• Status: Published

Opinion

—In an action to foreclose a mortgage on real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated May 3, 1994, which granted the defendants’ motion to stay the foreclosure sale pending certain discovery and denied her cross motion to vacate the stay.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the defendants’ motion is denied, the plaintiff’s cross motion is granted, the stay of foreclosure is vacated, and the matter is remitted to the Supreme Court, Nassau County, to set a date for the foreclosure sale of the real property.

The Supreme Court improvidently exercised its discretion in staying the foreclosure sale (see, CPLR 2201). A review of the record indicates that the defendants wholly failed to establish any fact to support their position that the deceased mortgagor had violated the Banking Law in making the mortgage (see, Banking Law § 590 [2] [a]). O’Brien, J. P., Pizzuto, Santucci and Joy, JJ., concur.