The following papers numbered 1 through 15 were read on the motion of DEUTSCHE BANK NATIONAL TRUST COMPANY as TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF MARCH 1, 2007 SECURITIZED ASSET-BACKED RECEIVABLES, LLC. TRUST 2007-BRI MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-BRI (“plaintiff”), made pursuant to CPLR §2001 and 2221(a), for an order vacating the stipulation of discontinuance and restoring the action to the calendar (Mot. Seq. 2); and on the cross-motion of THOMAS LEE (“defendant”) made pursuant to RPAPL §1501(4) to cancel and discharge of record the subject mortgage:PAPERS NUMBEREDNotice of Motion, Affirmation in Support, Exhibits A-J 1-12Notice of Cross-Motion, Affirmation in Opposition to Motion and in Support of Cross-Motion 13-14Reply Affirmation 15DECISION/ORDER
*1 This residential foreclosure action was commenced on January 23, 2009. On November 23, 2009, plaintiff, then represented by Rosicki, Rosicki & Associates, P.C. (“Rosicki”), moved the court for a default judgment and appointment of a referee to compute (Mot Seq. 1) [Exh. G], which was denied by the court (Bellantoni, J.)1 on January 4, 20112. On September 19, 2013, pursuant to consent to change attorney, plaintiff’s current counsel, Leopold & Associates (“Leopold”), was substituted for Rosicki. On August 3, 2015, Leopold filed the signed Notice Discontinuing Action, dated July 15, 2015 “(the discontinuance”), together with the Affirmation canceling the Lis Pendens [Exh. J]. The matter was marked as disposed on the court’s calendar. Plaintiff now moves to vacate its discontinuance, and to restore the action to the court’s calendar. Defendant opposes the motion, and cross-moves to cancel and discharge of record the subject mortgage.Plaintiff argues, pursuant to CPLR 2221(a) and CPLR §2001, that the discontinuance should be vacated because it was filed by mistake since there was no intent to file it, that it was filed as a result of law office failure, and that if the discontinuance is not vacated, plaintiff’s rights will be prejudiced.CPLR 2221 [Motion affecting prior order] states:(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the courtCPLR §2001 [Mistakes omissions, defects and irregularities] states:
