HSBC Bank USA, N.A. v. Michalczyk

211 A.D.3d 914

180 N.Y.S.3d 580

HSBC BANK USA, N.A., respondent,

v.Mildred J. MICHALCZYK, defendant-appellant, et al., defendants;

Peter Czech, nonparty-appellant.

2018-02510, 2018-06988, 2018-08984

Index No. 600223/15

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

Submitted—September 19, 2022

December 21, 2022

Mildred J. Michalczyk, E. Farmingdale, NY, defendant-appellant pro se, and Peter Czech, E. Farmingdale, NY, nonparty-appellant pro se (one brief filed).

Fein, Such & Crane, LLP, Westbury, NY (Michael S. Hanusek of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mildred J. Michalczyk and nonparty Peter Czech appeal from (1) an order of the Supreme Court, Suffolk County (John J. Toomey, J.), dated December 20, 2017, (2) an order of the same court, also dated December 20, 2017, and (3) an order of the same court (Howard H. Heckman, Jr., J.) dated April 30, 2018. The first order dated December 20, 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 Mildred J. Michalczyk, to strike her answer, affirmative defenses, and counterclaims, to amend the caption to substitute the name Peter Czech in place of "John Doe # 1" and for leave to enter a default judgment against him, and for an order of reference, and denied the cross motion of the defendant Mildred J. Michalczyk for summary judgment dismissing the complaint insofar as asserted against her. The second order dated December 20, 2017, insofar as appealed from, granted those same branches of the plaintiff's motion, struck the answer and counterclaims of the defendant Mildred J. Michalczyk, and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan. The order dated April 30, 2018, denied the motion of the defendant Mildred J. Michalczyk and Peter Czech, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue the opposition of the defendant Mildred J. Michalczyk to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her, to strike her answer, affirmative defenses, and counterclaims, and for an order of reference, and the prior cross motion of the defendant Mildred J. Michalczyk for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the appeal from the order dated April 30, 2018, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeals by Peter Czech from the orders dated December 20, 2017, are dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511 ; HSBC Bank, USA, N.A. v. Carpinelli, 207 A.D.3d 707, 170 N.Y.S.3d 899 ; U.S. Bank N.A. v. Persaud, 175 A.D.3d 1343, 1344, 109 N.Y.S.3d 86 ); and it is further,

ORDERED that the appeals by the defendant Mildred J. Michalczyk from so much of the orders dated December 20, 2017, as granted that branch of the plaintiff's motion which was to amend the caption to substitute the name Peter Czech in place of "John Doe # 1" and for leave to enter a default judgment against him are dismissed, as she is not aggrieved by those portions of the orders (see CPLR 5511 ; Wells Fargo Bank, N.A. v. Arratia, 207 A.D.3d 598, 169 N.Y.S.3d 837 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the first order dated December 20, 2017, is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mildred J. Michalczyk, to strike her answer, affirmative defenses other than the affirmative defense alleging lack of standing, and counterclaims, and for an order of reference, and substituting therefor provisions denying those branches of the motion; as so modified, the first order dated December 20, 2017, is affirmed insofar as reviewed on the appeal by the defendant Mildred J. Michalczyk, and so much of second order dated December 20, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mildred J. Michalczyk, to strike her answer, affirmative defenses other than the affirmative defense alleging lack of standing, and counterclaims, and for an order of reference, struck the answer and counterclaims of the defendant Mildred J. Michalczyk, and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan is vacated; and it is further,

ORDERED that the appeal by the defendant Mildred J. Michalczyk from so much of the second order dated December 20, 2017, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Mildred J. Michalczyk, to strike her answer, affirmative defenses other than the affirmative defense alleging lack of standing, and counterclaims, and for an order of reference, struck the answer and counterclaims of the defendant Mildred J. Michalczyk, and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan is dismissed as academic in light of our determination on the appeal from the first order dated December 20, 2017; and it is further,

ORDERED that the second order dated December 20, 2017, is affirmed insofar as reviewed on the appeal by the defendant Mildred J. Michalczyk; and it is further,

ORDERED that one bill of costs is awarded to the defendant Mildred J. Michalczyk, payable by the plaintiff.

In 2015, the plaintiff commenced this action to foreclose a mortgage on certain residential property in Babylon against, among others, the defendant Mildred J. Michalczyk (hereinafter the borrower), who had obtained a home equity line of credit secured by the mortgage, and "John Doe # 1." The borrower interposed an answer which denied the allegations in the complaint and asserted various affirmative defenses, including lack of standing and failure to comply with the notice provisions of the mortgage agreement and RPAPL 1304, and several counterclaims. Peter Czech was served with a copy of the summons and complaint as "John Doe # 1," but he did not appear or answer the complaint.

After the matter was released from the mandatory foreclosure settlement part, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the borrower, to strike her answer, affirmative defenses, and counterclaims, to amend the caption to substitute Czech in place of "John Doe # 1" and for leave to enter a default judgment against him, and for an order of reference. The borrower opposed those branches of the motion which sought summary judgment on the complaint insofar as asserted against her, to strike her answer, affirmative defenses, and counterclaims, and for an order of reference, and cross-moved for summary judgment dismissing the complaint insofar as asserted against her. In opposition to those branches of the plaintiff's motion and in support of her cross motion, the borrower argued, inter alia, that the plaintiff lacked standing and failed to comply with the notice provisions of the mortgage agreement and RPAPL 1304. Czech did not oppose the plaintiff's motion.

In an order dated December 20, 2017, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the borrower's cross motion. In a second order dated December 20, 2017, the court, among other things, granted those branches of the plaintiff's motion, struck the borrower's answer and counterclaims, and referred the matter to a referee to ascertain and compute the amount due on the loan. Thereafter, the borrower and Czech moved for what they denominated as leave to renew and reargue, but which was actually for leave to reargue the borrower's opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against her, to strike her answer, affirmative defenses, and counterclaims, and for an order of reference, and her prior cross motion for summary judgment dismissing the complaint insofar as asserted against her. In an order dated April 30, 2018, the court characterized the motion as one for leave to reargue and denied the motion. The borrower and Czech (hereinafter together the appellants) appeal from the two orders dated December 20, 2017, and the order dated April 30, 2018.

The Supreme Court properly treated the appellants’ motion as one for leave to reargue, since it was not based upon "new facts" and they did not offer a reasonable justification for the failure to present such facts in opposition to the plaintiff's motion and in support of the borrower's cross...