Bankunited v. Kaur

208 A.D.3d 622

173 N.Y.S.3d 55

BANKUNITED, etc., plaintiff,

v.Nirmal KAUR, etc., et al., respondents, et al., defendants,

Castle Peak 2012–1 Loan Mortgage Backed Notes, etc., nonparty-appellant. (Appeal No. 1)

Castle Peak 2012–1 Loan Mortgage Backed Notes, etc., appellant,

v.Nirmal Kaur, etc., et al., respondents, et al., defendants. (Appeals No. 2 and 3)

2020–05191, 2020–05193, 2020–05194

Index No. 13305/10

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

Submitted—March 8, 2022

August 17, 2022

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Rajdai D. Singh of counsel), for Castle Peak 2012–1 Loan Mortgage Backed Notes, nonparty-appellant in Appeal No. 1 and appellant in Appeals No. 2 and 3.

Vernita Charles, Brooklyn, NY, for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, Castle Peak 2012–1 Loan Mortgage Backed Notes appeals from (1) an order of the Supreme Court, Queens County (Martin J. Schulman, J.), dated March 8, 2017, (2) an order of the same court (Carmen R. Velasquez, J.), dated July 12, 2018, and (3) an order of the same court (Carmen R. Velasquez, J.), dated April 10, 2019. The order dated March 8, 2017, sua sponte, directed dismissal of the action on the ground that the plaintiff's predecessor in interest, Bankunited, had failed to move for a judgment of foreclosure and sale by March 8, 2017, as previously directed by an order of the same court dated December 14, 2016. The order dated July 12, 2018, insofar as appealed from, denied that branch of the plaintiff's motion which was to vacate the order dated March 8, 2017. The order dated April 10, 2019, insofar as appealed from, denied those branches of the motion of the plaintiff's successor in interest, nonparty Marchai Properties, LP, which were for leave to renew and reargue that branch of the plaintiff's prior motion which was to vacate the order dated March 8, 2017.

ORDERED that the appeal from the order dated March 8, 2017, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice, and we decline to grant leave to appeal (see Deutsche Bank Natl. Trust Co. v. Brown, 186 A.D.3d 1195, 127 N.Y.S.3d 871 ); and it is further,

ORDERED that the order dated July 12, 2018, is reversed insofar as appealed from, on the law, and that branch of the plaintiff's motion which was to vacate the order dated March 8, 2017, is granted; and it is further,

ORDERED that the appeal from so much of the order dated April 10, 2019, as denied that branch of the motion of the plaintiff's successor in interest, nonparty Marchai Properties, LP, which was for leave to reargue that branch of the plaintiff's prior motion which was to vacate the order dated March 8, 2017, is dismissed, as no appeal lies from an order denying reargument; and it is further;

ORDERED that the appeal from so much of the order dated April 10, 2019, as denied that branch of the motion of the plaintiff's successor in interest, nonparty Marchai Properties, LP, which was for leave to renew that branch of the plaintiff's prior motion which was to vacate the order dated March 8, 2017, is dismissed as academic, in light of our determination on the appeal from the order dated July 12, 2018; and it is further;

ORDERED that one bill of costs is awarded to Castle Peak 2012–1 Loan Mortgage Backed Notes.

In May 2010, the plaintiff's predecessor in interest, Bankunited, commenced this action against, among others, the defendants Nirmal Kaur and Jagtar Singh (hereinafter together the defendants) to foreclose a mortgage securing certain residential property in Queens. In a status conference order dated December 14, 2016 (hereinafter the December 2016 order), the Supreme Court, inter alia, directed Bankunited to move for a judgment of foreclosure and sale by March 8, 2017. The order also provided, in relevant part: "ORDERED, that failure to comply with the terms of this order may result in the dismissal of this action without prejudice." Thereafter, in an order dated March 8, 2017 (hereinafter the March 2017 order), the court found that Bankunited had not complied with the December 2016 order and, sua sponte, directed dismissal of the action without prejudice.

In August 2017, the plaintiff moved, inter alia, to vacate the March 2017 order. In an order dated July 12, 2018 (hereinafter the July 2018 order)...