HSBC Bank United States, N.A. v. Butt

199 A.D.3d 662

156 N.Y.S.3d 393

HSBC BANK USA, N.A., respondent,

v.Abid BUTT, appellant, et al., defendants.

2018–02932, 2018–02933, 2019–11332

Index No. 22495/13

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

Argued—September 23, 2021

November 3, 2021

Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.

Rosicki, Rosicki & Associates, P.C. (Reed Smith LLP, New York, NY [Andrew B. Messite and Michael V. Margarella ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Abid Butt appeals from (1) an order of the Supreme Court, Queens County (Cheree´ A. Buggs, J.), entered December 13, 2017, (2) an order of the same court entered December 28, 2017, and (3) an order and judgment of foreclosure and sale (one paper) of the same court entered July 23, 2019. The order entered December 13, 2017, 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 Abid Butt, to strike that defendant's answer, and for an order of reference. The order entered December 28, 2017, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. The order and judgment of foreclosure and sale, upon the orders, inter alia, confirmed the referee's report and directed the sale of the subject property.

By order to show cause dated March 8, 2021, the parties to the appeals were directed to show cause before this Court why an order should not be made and entered dismissing the appeals from the orders on the ground that the right of direct appeal from the orders terminated upon entry of the order and judgment of foreclosure and sale. By decision and order on motion of this Court dated April 21, 2021, 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 order show cause and the papers filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the motion to dismiss the appeals from the orders is granted; and it is further,

ORDERED that the appeals from the orders entered December 13, 2017, and December 28, 2017, are dismissed; and it is further,

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

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

The appeals from the orders entered December 13, 2017, and December 28, 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, 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] ).

On December 20, 2006, the defendant Abid Butt (hereinafter the defendant) executed a note in the amount of $596,000 in favor of nonparty New Century Mortgage Corporation (hereinafter New Century). The note was secured by a mortgage on certain real property located in Queens.

On December 10, 2013, the plaintiff, HSBC Bank USA, N.A., New Century's successor in interest, commenced the instant action to foreclose the mortgage against the defendant, among others. On or about June 9, 2017, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. In support of its motion, the plaintiff submitted the affidavit of Richard L. Penno, vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff's loan servicer. Penno stated that he was familiar with Wells Fargo's records and record-keeping practices. He further stated that Wells Fargo "mailed a 90–day notice dated July 19, 2013, as described in Real Property Actions and Proceedings Law ("RPAPL") § 1304, to the Borrowers at the Property, by both certified and first-class mail." He described the standard office procedure designed to ensure the mailing of such notices, which included the use of third-party software known as "TrackRight" to "memorialize" the mailings.

Penno attached a TrackRight report to his affidavit. The bottom of the page states "Copyright © 2016 Walz Group, Inc." The TrackRight report refers to the creation of a Mailbook on July 22, 2013, as a "Walz Event." The plaintiff also submitted a certified mail return receipt signed by the defendant. The plaintiff further submitted a record regarding...