BANK OF NEW YORK v. MIDLAND AVENUE DEVELOPMENT CO (1997)

Supreme Court, Westchester County, New York.

BANK OF NEW YORK, as Successor to Scarsdale National Bank and Trust Company, Plaintiff, v. MIDLAND AVENUE DEVELOPMENT CO., also known as Midland Avenue Development Company, et al., Defendants.
Joseph BARBER, Individually and doing business as Rye Investment Group, et al., Third-Party Plaintiffs, v. CASSIN, CASSIN & JOSEPH, et al., Third-Party Defendants.

Decided: January 08, 1997

Robert G. Cucinell, White Plains, for plaintiff. Jeffrey D. Grant & Associates, Mamaroneck, for Midland Avenue Development Co. and others, defendants and third-party plaintiffs. Keane & Beane, P. C., White Plains, for estate of William F. Cassin, defendant. James A. Cartelli, White Plains, for Ronald K. Freeman, defendant. William A. Sullivan, Rye, for John B. Meikle, defendant. Milton Berner, Rye, for Alfred F. Ash, defendant. McCullough, Goldberger & Staudt, White Plains, for Darcy G. Gibson, defendant. Kelly & Kmetz, White Plains, for Martin Mannion, defendant. Robert A. Levey, East Syracuse, for Paul Freeman, defendant. David A. Zarrett, Great Neck, for Richard Freeman, defendant. Miller & Bush, New York City, for Local 32E Service Employees International Union, defendant. Dennis C. Vacco, Attorney-General, New York City, for New York State Tax Commission and another, defendants. Voute, Lohrfink & Collins, White Plains, for Cassin, Cassin & Joseph, third-party defendant.

Motion by plaintiff to serve a second amended complaint.

This motion is disposed of as follows:

Since this foreclosure action has been rendered moot by the judgment rendered on May 2, 1996 (Rudolph, J.) for the City of Rye in its tax foreclosure action of the same property, plaintiff's application to convert this foreclosure action into an action at law to recover on the note by amending the foreclosure complaint and filing a Second Amended Complaint is denied as plaintiff's sole recourse is to commence a separate action on the note (European American Bank v. Perspective Development Corp., 220 A.D.2d 717, 633 N.Y.S.2d 341; RPAPL § 1301[3] ). Since the alleged default occurred in January 1990, said action would be barred by the six-year Statute of Limitations.

The cross-motion was not considered because it was not served pursuant to CPLR 2215. Opposition papers filed on or before the return date were considered by the Court (W.I.L.D. W.A.T.E.R.S., Ltd. v. Martinez, 148 A.D.2d 847, 539 N.Y.S.2d 119; CPLR 2214).

JAMES R. COWHEY, Justice.

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