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New Affidavits Properly Allowed in Foreclosure Proceedings; Accuracy of the Execution or Notarizations of the Original Affidavits Could Not Be Confirmed

In affirming Supreme Court’s granting of plaintiff’s motion to substitute new affidavits of merit in a foreclosure proceeding because the accuracy of the execution and/or notarizations of the original affidavits could not be confirmed, the Second Department explained:

CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced … . ” Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party'” … . The provisions in CPLR 2001 and 5019(a) may only be employed to correct errors where the corrections do not affect a substantial right of the parties … .

Under the facts of this case, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion. No substantial right of Eaddy [the defendant] will be affected by the court’s substitution of the new affidavits of merit and of the amount due … . The new proposed affidavits of merit and of the amount due list the same amounts due and owing as those stated in the original affidavits submitted with the application for the order of reference and the application for the judgment of foreclosure and sale. Further, Eaddy has remained in possession of the subject property throughout the pendency of the instant action. US Bank NA v Eaddy, 2013 NY Slip Op 05896, 2nd Dept 9-18-13

 

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