United States District Court, E.D. New York
CIT BANK, N.A. FORMERLY KNOWN AS ONEWEST BANK N.A. Plaintiff,
JOHN O'SULLIVAN A/K/A JOHN OSULLIVAN, FILOMENA O'SULLIVAN A/ KIA FILOMENA OSULLIVAN, CITIBANK NA, JOHN DOE being fictitious, and unknown to Plaintiff, intended to be tenants, occupants, persons or corporations having or claiming an interest in or a lien encumbering the property described in the Complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors, or successors., Defendants.
APPEARANCES: GROSS POLOWY LLC Attorneys for the Plaintiff,
By: Michael W. Nardolillo, Esq., John J. Ricciardi, Esq.,
Stephen J. Vargas, Esq., Keith Young, Esq., Of Counsel
MEMORANDUM OF DECISION & ORDER
D. SPATT United States District Judge.
October 13, 2014, the Plaintiff, CIT Bank, N.A. (the
“Plaintiff”), commenced this diversity mortgage
foreclosure action under Article 13 of the New York Real
Property Actions and Proceedings Law, seeking to foreclose on
its security interest in a parcel of real property owned by
the Defendants John O'Sullivan a/k/a John OSullivan and
Filomena O'Sullivan a/k/a Filomena OSullivan (together,
the O'Sullivans). The real property at interest is
located at 40 West Windsor Parkway in Oceanside, New York
November 7, 2014, the O'Sullivans filed an answer in this
action. In addition to the O'Sullivans, the Plaintiff
named Citibank, N.A. (“Citibank”) as a defendant
in this action, alleging that Citibank is the holder of a
junior secured lien against the Property, which the Plaintiff
sought to extinguish and thereby quiet title to the property.
On February 12, 2015, the Clerk of the Court noted
10, 2016, the Court issued an order granting summary judgment
to the Plaintiff pursuant to Rule 56 of the Federal Rules of
Civil Procedure (“Rules” or “Fed R. Civ.
P.”) and denying the O'Sullivans' cross-motion
for summary judgment.
Judgment of Foreclosure and Sale was filed with the Clerk of
the Court on June 24, 2016 and the case was closed.
D. Lerner, Esq. was appointed as Referee to conduct a public
auction of the Property pursuant to the Judgment of
Foreclosure and Sale; however, no such auction was ever held.
August 15, 2016, the O'Sullivans informed the Court of
their intention to proceed as pro se litigants.
August 2016 to May 2017, the O'Sullivans filed a series
of bankruptcy petitions in the United States Bankruptcy Court
for the Eastern District of New York, which were either
discharged or dismissed.
August 17, 2017, the Plaintiff accepted the
O'Sullivans' offer of a “short sale” of
the Property as satisfaction of the Judgment of Foreclosure
and Sale. The O'Sullivans subsequently sold the Property
to a third party.
Plaintiff now brings the instant motion seeking to (1) vacate
the Judgment of Foreclosure and sale pursuant to Fed.R.Civ.P.
60; (2) voluntarily dismiss the action pursuant to
Fed.R.Civ.P. 41; and (3) cancel the Notice of Pendency
pursuant to New ...