Deutsche Bank Nat'l Trust Co. v. Smith

211 A.D.3d 817

181 N.Y.S.3d 117

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Vickie SMITH, et al., appellants, et al., defendants.

2019–01319, 2019–01320

Index No. 8095/12

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

Argued—April 18, 2022

December 14, 2022

Stephen C. Silverberg, PLLC, Uniondale, NY (Stephen C. Silverberg of counsel), for appellants.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Vickie Smith and Scott Cowan appeal from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated August 30, 2017, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered September 8, 2017. 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 granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

Motion by the plaintiff, inter alia, to dismiss stated portions of the appeals on the ground that the review of certain issues is precluded by the dismissal of a prior appeal for failure to timely perfect. By decision and order on motion of this Court dated December 16, 2019, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the branch of the motion which is to dismiss stated portions of the appeals on the ground that the review of certain issues is precluded by the dismissal of a prior appeal for failure to timely perfect is granted to the extent that so much of the appeal from the order and judgment of foreclosure and sale as seeks review of those issues which could have been raised on the appeal by the defendants Vickie Smith and Scott Cowan from an order entered January 28, 2016, which appeal was dismissed for failure to timely perfect, is dismissed, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the appeal from the order dated August 30, 2017, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order dated August 30, 2017, 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 that order 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] ).

On August 28, 2006, the defendants Vickie Smith and Scott Cowan (hereinafter together the defendants) executed a note in the sum of $400,000 in favor of New Century Mortgage Corporation. The note was secured by a mortgage on residential property located in Freeport. By assignment of mortgage dated July 11, 2011, the mortgage was assigned to the plaintiff. On June 26, 2012, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. The defendants interposed an answer in which they asserted, inter alia, an affirmative defense alleging lack of standing.

In February 2015, the plaintiff moved for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants opposed the motion. In an order entered January 28, 2016, the Supreme Court granted the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff. The defendants appealed from that order, but the appeal was subsequently dismissed for failure to timely perfect.

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