Bank of N.Y. Mellon v. Ramsamooj

194 A.D.3d 997

144 N.Y.S.3d 600 (Mem)

BANK OF NEW YORK MELLON, etc., respondent,

v.Baldeo RAMSAMOOJ, et al., defendants,Jessica Boissard, appellant.

2017–10725, 2017–10785, 2018–06948, 2018–07925

Index No. 600922/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 23, 2021

May 26, 2021

The Ranalli Law Group, PLLC, Hauppauge, N.Y. (Ernest E. Ranalli of counsel), for appellant.

Davidson Fink, Rochester, N.Y. (Ashley E. Ragan of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jessica Boissard appeals from (1) an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated June 30, 2017, (2) an order of the same court also dated June 30, 2017, (3) an order of the same court dated April 17, 2018, and (4) a judgment of foreclosure and sale of the same court also dated April 17, 2018. The first order dated June 30, 2017, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Jessica Boissard, to strike her answer and counterclaims, and for an order of reference. The second order dated June 30, 2017, insofar as appealed from, granted the same relief and appointed a referee to compute the amount due to the plaintiff. The order dated April 17, 2018, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The judgment of foreclosure and sale, upon the orders dated June 30, 2017, and April 17, 2018, confirmed the referee's report and directed the sale of the subject property.

ORDERED that the appeals from the orders dated June 30, 2017, and April 17, 2018, are dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeals from the orders dated June 30, 2017, and April 17, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ).

In December 2006, the defendant Jessica Boissard (hereinafter the defendant) conveyed the subject property, located in Suffolk County, to the defendant Baldeo Ramsamooj. On that same date, Ramsamooj executed a note in favor of America's Wholesale Lender, which was secured by a mortgage encumbering the subject property. In May 2010, Ramsamooj conveyed the subject property back to the defendant. Ramsamooj allegedly defaulted on the note in July 2011. By assignment of mortgage dated November 29, 2011, Mortgage Electronic Registration Systems, Inc., as nominee for America's Wholesale Lender, assigned the mortgage to the plaintiff. In January 2015, the plaintiff commenced this mortgage foreclosure action. The plaintiff thereafter moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and counterclaims, and for an order of reference. The Supreme Court granted that motion. The plaintiff then moved to confirm the referee's report and for a judgment of foreclosure of sale. The court granted that motion and issued a judgment of foreclosure and sale. The defendant appeals.

"The notice requirements of RPAPL 1304 were enacted for the benefit and protection of borrowers" ( HSBC Bank USA, N.A. v. Tigani, 185 A.D.3d 796, 799, 128 N.Y.S.3d 522 ). Here, it is undisputed that Ramsamooj is the only mortgagor and the only person named on the note. Although the defendant is the...