HSBC Bank United States, N.A. v. Blair-Walker

202 A.D.3d 1065

163 N.Y.S.3d 582

HSBC BANK USA, N.A., respondent,

v.Elaine E. BLAIR–WALKER, etc., appellant, et al., defendants.

2017–12899, 2018–12599, 2019–10047

Index No. 711762/15

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

Submitted—November 16, 2021

February 23, 2022

Elaine Blair–Walker, named herein as Elaine E. Blair–Walker, St. Albans, NY, appellant pro se.

Stern & Eisenberg, P.C., Depew, NY (Anthony P. Scali, Margaret J. Cascino, and Arsenio Rodriguez of counsel), for respondent.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Elaine E. Blair–Walker appeals from (1) an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), dated April 28, 2017, (2) an order of the same court entered August 17, 2018, and (3) an order and judgment of foreclosure and sale (one paper) of the same court entered January 31, 2019. The order dated April 28, 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 Elaine E. Blair–Walker and for an order of reference and denied that defendant's cross motion to strike the plaintiff's affidavit of merit. The order entered August 17, 2018, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale and denied the cross motion of the defendant Elaine E. Blair–Walker to reject the referee's report. The order and judgment of foreclosure and sale entered January 31, 2019, upon the order dated April 28, 2017, and the order entered August 17, 2018, inter alia, confirmed the referee's report and directed the sale of the real property at issue.

By order to show cause dated March 24, 2021, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated April 28, 2017, on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment of foreclosure and sale. By decision and order on motion of this Court dated May 28, 2021, the motion to dismiss the appeal from the order dated April 28, 2017, was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Now, upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeals, it is

ORDERED that the motion to dismiss the appeal from the order dated April 28, 2017, is granted; and it is further,

ORDERED that the appeal from the order dated April 28, 2017, is dismissed; and it is further,

ORDERED that the appeal from the order entered August 17, 2018, is 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 order dated April 28, 2017, and the order entered August 17, 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 those 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] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In November 2015, the plaintiff commenced this action against the defendant Elaine E. Blair–Walker (hereinafter the defendant), among others, to foreclose a mortgage securing certain real property owned by the defendant in Queens (hereinafter the premises). The defendant interposed an answer asserting, inter alia, the affirmative defense of lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant cross-moved to strike the plaintiff's affidavit of merit. In an order dated April 28, 2017 (hereinafter the April 2017 order), the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference and denied the defendant's cross motion. Subsequently, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the plaintiff's motion and cross-moved to reject the referee's report. In an order entered August 17, 2018 (hereinafter the August 2018 order), the court granted the plaintiff's motion and denied the defendant's cross motion. In an order and judgment of foreclosure and sale entered January 31, 2019, the court, among other things, confirmed the referee's report and directed the sale of the premises. The defendant appeals.

Generally, in moving for summary judgment in an action to foreclose a mortgage, "a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" ( Bank of Am., N.A. v. Montagnese, 198 A.D.3d 850, 851, 152 N.Y.S.3d 832 [internal quotation marks omitted]; see U.S. Bank, N.A. v. Zientek, 192 A.D.3d 1189, 1190, 146 N.Y.S.3d 169 ). Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, the plaintiff must prove its standing to be entitled to relief against the defendant (see Bank of Am., N.A. v. Montagnese, 198 A.D.3d at 852, 152 N.Y.S.3d 832 ). " ‘A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced’ " ( U.S. Bank N.A. v. Bochicchio, 179 A.D.3d 1133, 1134–1135, 118 N.Y.S.3d 191, quoting Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 203, 97 N.Y.S.3d 286 ). " ‘Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident’ " ( Bank of Am., N.A. v. Montagnese, 198 A.D.3d at 852, 152 N.Y.S.3d 832, quoting U.S. Bank N.A. v....