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WELLS FARGO BANK v. PODESWIK

81 CA 13-00831

115 A.D.3d 207 (2014)

981 N.Y.S.2d 230

2014 NY Slip Op 1045

WELLS FARGO BANK NA, Successor by Merger to WELLS FARGO BANK MINNESOTA, NA, as Trustee Formerly Known as NORWEST BANK MINNESOTA, NA, as Trustee for the DELTA FUNDING HOME EQUITY LOAN ASSET-BACKED CERTIFICATE SERIES 1999-2, Respondent, v. DAVID J. PODESWIK, as Administrator of the Estate of KATHRYN PODESWIK, Deceased, et al., Appellants. (Action No. 1.) HILARY LESNIAK, as Administrator of the Estate of KATHRYN PODESWIK, Deceased, Appellant, v. WELLS FARGO BANK NA, Successor by Merger to WELLS FARGO BANK MINNESOTA, NA, as Trustee Formerly Known as NORWEST BANK MINNESOTA, NA, as Trustee for the DELTA FUNDING HOME EQUITY LOAN ASSET-BACKED CERTIFICATE SERIES 1999-2, et al., Respondents, et al., Defendants. (Action No. 2.)

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided February 14, 2014.

Attorney(s) appearing for the Case

Laurie A. Lesniak , White Plains, for plaintiff-appellant.

Harris, Chesworth, O'Brien, Johnstone & Welch, LLP, Rochester ( Letty L. Laskowski of counsel), for plaintiff-respondent and defendant-respondent Wells Fargo Bank NA, Successor by Merger to Wells Fargo Bank Minnesota, NA, as Trustee Formerly Known as Norwest Bank Minnesota, NA, as Trustee for the Delta Funding Home Equity Loan Asset-Backed Certificate Series 1999-2 and for defendant-respondent Ocwen Loan Servicing LLC.

Kenney Shelton Liptak Nowak LLP, Buffalo ( Robert A. Crawford, Jr. , of counsel), for defendant-respondent American Security Insurance Co.

FAHEY, LINDLEY, SCONIERS and WHALEN, JJ., concur.

OPINION OF THE COURT

CENTRA, J.P.

On this appeal, we must decide whether to vacate an order that modified a default judgment of foreclosure by including an additional parcel. We conclude, inter alia, that plaintiff has made a clear showing of entitlement to such vacatur.

Facts and Procedural History

These two actions have a lengthy factual and procedural history. In March 1997, Kathryn Podeswik (decedent) purchased two adjacent parcels...

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