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CIT Group/Consumer Fin., Inc. v Kaiser, 2022 NY Slip Op 03882 [206 AD3d 790]

June 15, 2022

Appellate Division, Second Department

[*1]

CIT Group/Consumer Finance, Inc., Respondent,

v

John R. Kaiser et al., Appellants, et al., Defendants.

Genevieve Lane Lopresti, Seaford, NY, for appellants.

Aldridge Pite LLP, Melville, NY (David Welch of counsel), for respondent.

In an action to foreclose a mortgage, the defendants John R. Kaiser and Rosemarie T. Kaiser appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 31, 2017. The order granted the plaintiff’s motion for an order of reference.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for an order of reference is denied.

The plaintiff commenced this action in 2007 to foreclose a mortgage on certain real property in Nassau County against, among others, the defendants John R. Kaiser and Rosemarie T. Kaiser (hereinafter together the defendants). In April 2015, the plaintiff moved for an order of reference. The defendants opposed the motion and separately moved, inter alia, to dismiss the complaint as abandoned pursuant to CPLR 3215 (c). In an order entered July 31, 2017, the Supreme Court granted the plaintiff’s motion for an order of reference. In an order entered August 28, 2017, the court denied the defendants’ motion. The defendants appeal from the order entered July 31, 2017.

For the reasons set forth in our decision and order on the companion appeal CIT Group/Consumer Fin., Inc. v Kaiser (206 AD3d 791 [2022] [decided herewith]), the Supreme Court should have granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against them as abandoned pursuant to CPLR 3215 (c). Upon granting that branch of the defendants’ motion, the court should have denied the plaintiff’s motion for an order of reference ( see Federal Natl. Mtge. Assn. v Kresner , 200 AD3d 981 , 983-984 [2021]; Deutsche Bank Natl. Trust Co. v Watson , 199 AD3d 879 [2021]). Brathwaite Nelson, J.P., Roman, Genovesi and Dowling, JJ., concur..