Tornatore v. Bruno , 720 N.Y.S.2d 436 ( 2001 )

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: 129 Canal Street Corporation, d/b/a The Crazy Clam, and Michael Miller (defendants) appeal from an order denying their cross motion seeking summary judgment dismissing the complaint against them, granting plaintiff’s motion for summary judgment and referring the matter to a Referee to determine the amount owed plaintiff for, inter alia, principal and interest on the note and mortgage. Plaintiff should have moved for a default judgment rather than summary judgment (see, CPLR 3215). Consequently, we modify the order by denying plaintiffs motion and vacating the reference, and we remit the matter to Supreme Court for further proceedings before a different Justice, to afford plaintiff the opportunity to seek a default judgment of foreclosure and to afford defendants the opportunity to seek permission to serve a late answer. (Appeal from Order of Supreme Court, Oneida County, Tenney, J.— Summary Judgment.) Present — Pigott, Jr., P. J., Hurlbutt, Kehoe and Lawton, JJ.