BANK OF NEW YORK v. Amalfi Abstract, Inc., Nonparty Respondent–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

BANK OF NEW YORK, etc., Plaintiff–Respondent, v. Jonathan M. HUNT, etc., et al., Defendants, Amalfi Abstract, Inc., Nonparty Respondent–Appellant.

Decided: May 22, 2012

TOM, J.P., SWEENY, RENWICK, FREEDMAN, ABDUS–SALAAM, JJ. Harris Beach, PLLC, Uniondale (William J. Garry of counsel), for appellant. Frankel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Joseph F. Battista of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 8, 2011, which denied nonparty Amalfi Abstract, Inc.'s motion for leave to renew a prior motion brought by plaintiff Bank of New York (“BNY”) to, inter alia, hold Amalfi in default for failure to close as the successful auction bidder on defendants' foreclosed condominium unit, direct that Amalfi's $76,000 deposit be forfeited and the condominium unit resold at auction, and charge Amalfi with any deficiency upon resale, plus costs and disbursements in the resale, unanimously affirmed, with costs.

The motion to renew relied upon generalized news articles reporting “robo-signing” practices by a bank that had acquired BNY's loan servicing agent.   Such non-specific news articles offered insufficient factual evidence to warrant a change of the motion court's prior order finding that Amalfi was in default under the terms of sale and the judgment of foreclosure, directing that Amalfi forfeit its deposit and the apartment be resold at auction (see CPLR 2221[e][2] ).   Nor was any new information provided regarding BNY's alleged lack of standing to commence this foreclosure action.   Lack of standing is not properly raised by Amalfi and, in any event, is belied by an affidavit from its loan servicing agent stating that BNY was assigned both the note and mortgage in connection with the condominium apartment.