Bank of N.Y. Mellon Trust Co., N.A. v. Ahmed

204 A.D.3d 972

165 N.Y.S.3d 330 (Mem)

BANK OF NEW YORK MELLON TRUST COMPANY, N.A., etc., respondent,

v.Ripa AHMED, appellant, et al., defendants.

2019–12801

Index No. 7274/13

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

Argued—February 17, 2022

April 27, 2022

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Phionah N. Brown and Kenneth Flickinger of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Ripa Ahmed appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Mojgan Cohanim Lancman, J.), entered August 19, 2019. The order and judgment of foreclosure and sale granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage on certain real property in Queens against, among others, the defendant Ripa Ahmed. A default judgment against all defendants and an order of reference was issued in August 2016. After a hearing, at which Ahmed was present by counsel, the referee computed the amount due to the plaintiff and issued a report accordingly. The plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered August 19, 2019, the Supreme Court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the property. Ahmed appeals.

Contrary to Ahmed's contentions, the hearing was properly conducted in accordance with CPLR 4318 and 4320 "in the same manner as a court trying an issue without a jury." The plaintiff was not required to provide the original note at the hearing (see Schozer v. William Penn Life Insurance Co. of New York, 84 N.Y.2d 639, 643–646, 620 N.Y.S.2d 797, 644 N.E.2d 1353 ; Mutlu v. Mutlu, 177 A.D.3d 979, 980, 115 N.Y.S.3d 339 ), since the validity of the note and mortgage was established previously when the plaintiff was granted a default judgment and order of reference (see generally Rokina Optical Co., Inc. v. Camera King, Inc., 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 [a defendant in default "admits all traversable allegations in the complaint, including the basic allegation of liability"]).

Contrary to Ahmed's contentions, the plaintiff successfully laid a foundation for the admission into...