Deutsche Bank Nat'l Trust Co. v. Bakarey

198 A.D.3d 718

156 N.Y.S.3d 58

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Tawa BAKAREY, appellant, et al., defendants.

2018–00392, 2018–10225, 2018–10226

Index No. 10320/08

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

Argued—September 24, 2021

October 13, 2021

Jeremy Rosenberg, Chestnut Ridge, NY, for appellant.

Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Keith L. Abramson of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Tawa Bakarey appeals from (1) an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 25, 2017, (2) an order of the same court (Lawrence Knipel, J.) dated June 13, 2018, and (3) an order and judgment of foreclosure and sale (one paper) of the same court (Lawrence Knipel, J.) dated June 22, 2018. The order dated August 25, 2017, denied that defendant's motion, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned or, in the alternative, to vacate her default in appearing or answering the complaint, for an extension of time to serve and file an answer to the complaint, and, thereupon, to dismiss the complaint insofar as asserted against her for lack of standing. The order dated June 13, 2018, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale. The order and judgment of foreclosure and sale, insofar as appealed from, granted the plaintiff's motion to confirm the referee's report and directed the sale of the subject property.

ORDERED that appeals from the orders dated August 25, 2017, and June 13, 2018, are dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law and in the exercise of discretion, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, that branch of the motion of the defendant Tawa Bakarey which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned is granted, and the orders dated August 25, 2017, and June 13, 2018, are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant Tawa Bakarey.

The appeals from the orders dated August 25, 2017, and June 13, 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 appeals from the orders 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] ).

In or about March 2008, the plaintiff commenced this mortgage foreclosure action against the defendant Tawa Bakarey (hereinafter the defendant), among others, alleging that she defaulted in payment under the terms of a note and mortgage encumbering a residential property located at in Brooklyn (hereinafter Action 1). Pursuant to a motion by the plaintiff, the Supreme Court issued an order dated August 9, 2010, directing service by publication and appointing a guardian ad litem to protect and defend the defendant's interests in the action.

On February 4, 2014, at a status conference, the Supreme Court issued a conditional order of dismissal for want of prosecution pursuant to CPLR 3216, directing dismissal of Action 1 and cancellation of the notice of pendency unless the plaintiff filed a note of issue or otherwise proceeded by motion for the entry of judgment within 90 days of February 4, 2014. Action 1 was thereafter dismissed. The property was subsequently transferred to 1677 Prospect Pl, LLC.

On or about July 30, 2014, the plaintiff moved to vacate the conditional order of dismissal, to restore the action to the calendar, in effect, for leave to enter a default judgment against the defendant, and for an order of reference. The defendant appeared in the action and opposed the motion, arguing that the plaintiff failed to establish a reasonable excuse for the delay in prosecuting the action or a meritorious claim. By order dated March 31, 2016, the Supreme Court, without comment, granted the plaintiff's motion to the extent that it restored the action to the calendar, but referred that branch of the plaintiff's motion which was for an order of reference to another Justice. The court also permitted the defendant to move for leave to file a late answer and for dismissal of the complaint.

In June 2016, the defendant moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned or, in the alternative, to vacate her default in appearing or answering the complaint, for an extension of time to serve and file an answer to the complaint, and, thereupon, to dismiss the complaint insofar as asserted against her for lack of standing. The plaintiff opposed the motion.

In or about September 2016, the plaintiff commenced a second foreclosure action, against 1677 Prospect Pl, LLC, among others, under Index No. 5800/16 (hereinafter Action 2). Shortly thereafter, by order dated January 5, 2017, the Supreme Court, in Action 1, granted the plaintiff's motion, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. In a separate order also dated January 5, 2017, the court, inter alia, referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

By order dated August 25, 2017, the Supreme Court denied the defendant's motion in Action 1 pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned or, in the alternative, to vacate her default in appearing or answering the complaint, for an extension of time to serve and file an answer, and, thereupon, to dismiss the complaint insofar as asserted against her for lack of standing.

On or about January 22, 2018, the plaintiff moved, inter alia, to confirm the referee's report in Action 1 and for a judgment of foreclosure and sale. The defendant opposed the motion. By order dated June 13, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale dated June 22, 2018, the court granted the plaintiff's motion to confirm the referee's report, consolidated Action 2 into Action 1, and directed the sale of the subject property. The defendant...