Bank of N.Y. Mellon v. Carbone

190 A.D.3d 803

136 N.Y.S.3d 783 (Mem)

BANK OF NEW YORK MELLON, etc., respondent,

v.Louis CARBONE, etc., et al., appellants, et al., defendants.

2018–14701

2018–14702

Index No. 5837/15

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

Argued - October 9, 2020

January 20, 2021

Lawrence Katz, Valley Stream, NY, for appellants.

Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Louis Carbone and Denise Carbone appeal from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 19, 2018, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered September 24, 2018. The order granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The order and judgment of foreclosure and sale, upon an order of the same court entered March 1, 2018, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Louis Carbone and Denise Carbone and for an order of reference, and upon the order entered September 19, 2018, inter alia, directed the sale of the subject property.

ORDERED that the appeal from the order entered September 19, 2018, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Louis Carbone and Denise Carbone and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, and the orders entered March 1, 2018, and September 19, 2018, are modified accordingly; and it is further,

ORDERED the one bill of costs is awarded to the defendants Louis Carbone and Denise Carbone.

The appeal from the order entered September 19, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order entered September 19, 2018, are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).

Contrary to the contentions of the defendants Louis Carbone and Denise Carbone (hereinafter together the defendants), the plaintiff established its standing to commence this action on its motion for summary judgment (see Wells Fargo Bank, N.A. v. Davis, 181 A.D.3d 890, 893, 122 N.Y.S.3d 103 ), and the defendants failed to demonstrate...