Westside Federal Savings & Loan Ass'n v. Fitzgerald

136 A.D.2d 699, 524 N.Y.S.2d 54, 1988 N.Y. App. Div. LEXIS 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1988
• Status: Published

Opinion

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Orange County (Ritter, J.), entered July 28, 1986, which granted the defendant John Fitzgerald’s motion to vacate a judgment of foreclosure and to set aside the sale of the property.

Ordered that the order is affirmed, with costs.

The court did not err in concluding that the plaintiff West-side Federal Savings & Loan Association of New York City (hereinafter Westside Federal) lacked the capacity to commence this lawsuit. It is undisputed, insofar as the record is concerned, that prior to the commencement of the subject lawsuit, Westside Federal had been merged with, and completely absorbed by, another banking institution and thereby ceased to exist as an independent jural entity. As this court has observed, "[o]nce such a merger has been effected, the absorbed corporation immediately ceases to exist as a separate entity, and may no longer be a named party in litigation” (Sheldon v Kimberly-Clark Corp., 105 AD2d 273, 276).

In light of the foregoing, the order appealed from should be affirmed. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.