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CIT Bank, N.A. v. O'Sullivan

United States District Court, E.D. New York

November 9, 2017

CIT BANK, N.A. FORMERLY KNOWN AS ONEWEST BANK N.A. Plaintiff,
v.
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

          NO APPEARANCES: Defendants

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT United States District Judge.

         I. BACKGOUND

         On 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 (the “Property”).

         On 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 Citibank's default.

         On May 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.

         A Judgment of Foreclosure and Sale was filed with the Clerk of the Court on June 24, 2016 and the case was closed.

         Kimberly 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.

         On August 15, 2016, the O'Sullivans informed the Court of their intention to proceed as pro se litigants.

         From 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.

         On 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.

         The 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 ...


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