JPMorgan Chase Bank Nat'l Ass'n v. Nehorayoff

203 N.Y.S.3d 623

223 A.D.3d 655

JPMORGAN CHASE BANK NATIONAL ASSOCIATION, respondent,

v.Mariana NEHORAYOFF, etc., et al., appellants, et al., defendants.

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

Submitted—October 10, 2023

January 10, 2024

Carl E. Person, New York, NY, for appellants.

Bradford Edward & Varlack LLP, New York, NY (Denver G. Edwards of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Mariana Nehorayoff and Andre Nehorayoff appeal from (1) an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated June 3, 2019, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered October 17, 2019. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against those defendants and for an order of reference, and denied those defendants’ cross-motion to vacate an order of the same court dated January 15, 2019, inter alia, granting the plaintiff’s motion pursuant to CPLR 3126 to strike those defendants’ amended answer, and to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304 and a notice of default provision in the mortgage agreement and as time-barred. The order and judgment of foreclosure and sale, insofar as appealed from, granted the plaintiff’s motion to confirm a referee’s report and for a judgment of foreclosure and sale, confirmed the referee’s report, and directed the sale of the subject property.

ORDERED that the appeal from the order dated June 3, 2019, is dismissed; and it is further,

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

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

[1] The appeal from the order 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 the order dated June 3, 2019, 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 6, 2007, the defendants Mariana Nehorayoff and Andre Nehorayoff (hereinafter together the defendants) executed a note in the amount of $4,225,000 in favor of nonparty Washington Mutual Bank, FA (hereinafter WaMu). The note was secured by a mortgage on certain real property located in Westchester County.

In November 2016, the plaintiff, WaMu’s successor in interest, commenced this action to foreclose the mortgage against the defendants, among others. The defendants interposed an amended answer on January 24, 2017.

The plaintiff served its first set of interrogatories on the defendants on July 21, 2017. The defendants failed to respond. The plaintiff served a notice of deposition on the defendants on October 27, 2017, and after the defendants failed to appear, served a second notice of deposition on December 7, 2017. The defendants again failed to appear.

On January 25, 2018, the plaintiff moved pursuant to CPLR 3126 to strike the defendants’ amended answer on the ground that the defendants had failed to comply with its discovery demands. On May 1, 2018, the defendants moved for leave to file late opposition to the motion and to supplement the record. In an order dated June 29, 2018, the Supreme Court denied the defendants’ motion and granted the plaintiff’s motion to the extent of directing the defendants to respond to the plaintiff’s discovery demands and appear for depositions within 20 days.

On August 28, 2018, the plaintiff again moved pursuant to CPLR 3126 to strike the defendants’ amended answer on the ground that the defendants failed to comply with the order dated June 29, 2018. The defendants did not oppose the motion, and it was marked fully submitted on September 21, 2018. On October 8, 2018, the defendants served their responses to the plaintiff’s first set of interrogatories. On October 9, 2018, the defendants moved for leave to file late opposition to the plaintiff’s motion and to supplement the record. In an order dated January 15, 2019, the Supreme Court granted the plaintiff’s motion and denied the defendants’ motion.

On March 19, 2019, the plaintiff moved for leave to enter a default judgment against the defendants and for an order of reference. The defendants cross-moved to vacate the order dated January 15, 2019, and to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304 and a notice of default provision in the mortgage agreement and as time-barred. The defendants contended that they cured their default by providing certain documents to the plaintiff on November 7, 2018, and by attempting to schedule their depositions on that date. In an order dated June 3, 2019, the Supreme Court granted the plaintiff’s motion and denied the defendants’ cross-motion.

The plaintiff then moved to confirm a referee’s report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered October 17, 2019, the Supreme Court, inter alia, 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. The defendants appeal.

[2–4] In support of their cross-motion, the defendants failed to establish that they had a potentially meritorious...