Merrill Lynch Credit Corp. v. Nicholson

210 A.D.3d 758

179 N.Y.S.3d 69

MERRILL LYNCH CREDIT CORPORATION, plaintiff,

v.Yolande NICHOLSON, appellant, et al., defendants;

Bank of America, National Association, nonparty-respondent.

(Appeal Nos. 1 and 2)

Bank of America, National Association, respondent,

v.Yolande Nicholson, appellant, et al., defendants.

(Appeal Nos. 3 and 4)

2018–05753, 2018–05754, 2019–14379, 2019–14381

Index No. 9227/12

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

Submitted—June 3, 2022

November 9, 2022

Law Offices of Robert L. Reda, P.C., Suffern, NY, for appellant.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Yolande Nicholson appeals from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated January 31, 2018, (2) an order of the same court (Lawrence Knipel, J.) also dated January 31, 2018, (3) an order of the same court (Ingrid Joseph, J.) dated July 26, 2019, and (4) an order and judgment of foreclosure and sale (one paper) of the same court (Ingrid Joseph, J.) dated July 26, 2019. The first order dated January 31, 2018, insofar as appealed from, granted those branches of the motion of Merrill Lynch Credit Corporation which were for summary judgment on the complaint insofar as asserted against the defendant Yolande Nicholson, to strike that defendant's answer and affirmative defenses, and for an order of reference. The second order dated January 31, 2018, insofar as appealed from, granted the same relief to Merrill Lynch Credit Corporation and appointed a referee. The order dated July 26, 2019, insofar as appealed from, granted the motion of Bank of America, National Association to confirm a referee's report and for a judgment of foreclosure of sale. The order and judgment of foreclosure and sale, inter alia, confirmed the referee's report and directed the sale of the subject property.

By order to show cause dated November 24, 2021, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals from the two orders dated January 31, 2018, on the ground that the right of direct appeal from those orders terminated upon entry of the order and judgment of foreclosure and sale in the action. By decision and order of motion dated March 25, 2022, this Court, inter alia, held the motion to dismiss the appeals from the two orders dated January 31, 2018, in abeyance and referred it to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

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 appeals from the orders dated January 31, 2018, is granted; and it is further,

ORDERED that the appeals from the orders dated January 31, 2018, are dismissed; and it is further,

ORDERED that the appeal from the order dated July 26, 2019, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, those branches of the motion of Merrill Lynch Credit Corporation which were for summary judgment on the complaint insofar as asserted against the defendant Yolande Nicholson, to strike that defendant's answer and affirmative defenses, and for an order of reference are denied, the motion of Bank of America, National Association to confirm the referee's report and for a judgment of foreclosure and sale is denied as academic, and the orders dated January 31, 2018, and the order dated July 26, 2019, are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant Yolande Nicholson.

The appeals from the two orders dated January 31, 2018, and the order dated July 26, 2019, 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 the orders dated January 31, 2018, and the order dated July 26, 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] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

On May 2, 2012, Merrill Lynch Credit Corporation (hereinafter Merrill Lynch) commenced this action against the defendant Yolande Nicholson (hereinafter the defendant), among others, to foreclose a mortgage on residential property in East Flatbush. Thereafter, Merrill Lynch moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and affirmative defenses, for an order of reference, and to amend the caption to substitute Bank of America, National Association (hereinafter BoA), as the plaintiff.

In two orders dated January 31, 2018, the Supreme Court, inter alia, granted those branches of Merrill Lynch's motion.

Thereafter, in an order dated July 26, 2019, the Supreme Court, inter alia, granted BoA's motion to confirm the referee's report and for a judgment of foreclosure and sale. On the same date, the court issued an order and judgment of...