Deutsche Bank Nat'l Trust Co. v. Unlimited Assets

211 A.D.3d 683

180 N.Y.S.3d 193

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.UNLIMITED ASSETS, appellant, et al., defendants.

2019–12877, 2019–12880

Index No. 704486/17

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

Argued—May 26, 2022

December 7, 2022

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

Shapiro, DiCaro & Barak, LLC, Rochester, NY (Ellis M. Oster of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Unlimited Assets appeals from (1) an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated March 8, 2018, and (2) an order of the same court entered October 3, 2019. The order dated March 8, 2018, 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 Unlimited Assets, in effect, to strike that defendant's answer, and for an order of reference. The order entered October 3, 2019, insofar as appealed from, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from the order dated March 8, 2018, is dismissed, as that order was superseded by the order entered October 3, 2019; and it is further,

ORDERED that the order entered October 3, 2019, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Unlimited Assets, in effect, to strike that defendant's answer, and for an order of reference are denied, and so much of the order dated March 8, 2018, as granted those branches of the plaintiff's motion is vacated; and it is further,

ORDERED that one bill of costs is awarded to the defendant Unlimited Assets.

In April 2006, Wael Aboelatif (hereinafter the borrower) executed a note and a mortgage encumbering certain real property located in Queens. The loan was subsequently modified by an agreement dated August 23, 2010. In May 2014, the borrower conveyed his interest in the property to the defendant Unlimited Assets (hereinafter Unlimited).

In April 2017, the plaintiff commenced this action to foreclose the mortgage against Unlimited, among others, alleging that the borrower defaulted under the terms of the note and mortgage by failing to make the payments due on September 1, 2011, and thereafter. Unlimited interposed an answer with 16 affirmative defenses. The plaintiff then moved, inter alia, for summary judgment on the complaint insofar as asserted against Unlimited, in effect, to strike Unlimited's answer, and for an order of reference. In an order dated March 8, 2018, the Supreme Court, among other things, granted those branches of the plaintiff's motion. In an order entered October 3, 2019, the court, inter alia, granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. Unlimited appeals.

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