PennyMac Corp. v. Bongiovanni

212 A.D.3d 837

183 N.Y.S.3d 461

PENNYMAC CORP., respondent,

v.Danielle Liguori BONGIOVANNI, et al., appellants, et al., defendants.

2019–12379

Index No. 135011/16

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

Submitted—September 13, 2022

January 25, 2023

Danielle Liguori Bongiovanni and Sebastian Bongiovanni, Staten Island, NY, appellants pro se.

McGovern & Amodio LLC, White Plains, NY (Michael P. Amodio of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Danielle Liguori Bongiovanni and Sebastian Bongiovanni appeal from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated April 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 the defendant Sebastian Bongiovanni, for summary judgment on the complaint insofar as asserted against the defendant Danielle Liguori Bongiovanni, and for an order of reference, denied the cross motion of the defendant Sebastian Bongiovanni, inter alia, to vacate his default in appearing or answering the complaint and to compel the plaintiff to accept his late answer, and denied the separate motion of those defendants, inter alia, for leave to amend the answer of the defendant Danielle Liguori Bongiovanni and to dismiss the complaint insofar as asserted against them for lack of standing.

ORDERED that the appeal by the defendant Danielle Liguori Bongiovanni from so much of the order as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant Sebastian Bongiovanni, and denied the cross motion of the defendant Sebastian Bongiovanni, inter alia, to vacate his default in appearing or answering the complaint and to compel the plaintiff to accept his late answer is dismissed, as the defendant Danielle Liguori Bongiovanni is not aggrieved by those portions of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further, ORDERED that the appeal by the defendant Sebastian Bongiovanni from so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Danielle Liguori Bongiovanni is dismissed, as the defendant Sebastian Bongiovanni is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d at 156–157, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

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

On November 13, 2007, the defendants Sebastian Bongiovanni (hereinafter Bongiovanni) and Danielle Liguori Bongiovanni (hereinafter Liguori, and together with Bongiovanni, the borrowers) executed and delivered a note to JPMorgan Chase Bank, N.A. (hereinafter Chase), in the principal amount of $637,500. On the same day, the borrowers executed a mortgage against real property located in Staten Island (hereinafter the subject property) to secure the note. Thereafter, Chase assigned the mortgage to the plaintiff, PennyMac Corp.

The plaintiff commenced this action to foreclose the mortgage against the borrowers, among others. Liguori interposed a pro se answer generally denying the allegations in the complaint. Bongiovanni did not timely appear in the action, and when he served a late answer, the plaintiff rejected it as untimely.

Bongiovanni nevertheless moved, in effect, to dismiss the complaint insofar as asserted against him on the ground that the plaintiff had engaged in fraud by misrepresenting the principal balance on the loan or, in the alternative, to recuse the Justice assigned to the case. By order dated March 28, 2017, the Supreme Court, inter alia, denied Bongiovanni's motion.

Bongiovanni then moved, among other things, to vacate the order dated March 28, 2017, in effect, to vacate his default in appearing in the action, and, in effect, to impose sanctions on the basis that the plaintiff failed to engage in settlement discussions and negotiations in good faith pursuant to CPLR 3408. In an order dated September 4, 2017, the Supreme Court, inter alia, denied Bongiovanni's motion. Bongiovanni appealed, and this Court, among other things, affirmed the order dated September 4, 2017, insofar as appealed from (see PennyMac Corp. v. Bongiovanni, 170 A.D.3d 875, 877–878, 96 N.Y.S.3d 113 ).

In the interim, the plaintiff moved, inter alia, for leave to enter a default judgment against Bongiovanni, for summary judgment on the complaint insofar as asserted against Liguori, and for an order of reference. Liguori opposed the plaintiff's motion. Bongiovanni opposed the plaintiff's motion and cross-moved, among other things, to vacate his default in appearing or answering the complaint and to compel the plaintiff to accept his late answer, and for a bad faith hearing pursuant to CPLR 3408. The plaintiff opposed Bongiovanni's cross motion. The borrowers then moved, inter alia, for leave for Liguori to file an amended answer with various affirmative defenses, including lack of standing, and to compel discovery, or, in the alternative, to dismiss the complaint insofar as asserted against them for lack of standing. The plaintiff opposed the motion. By order dated April 17, 2019, the Supreme Court, among other things, granted those branches of the plaintiff's motion, denied Bongiovanni's cross motion, and denied the borrowers’ separate motion. The borrowers appeal.

Liguori is not aggrieved by so much of the order as granted that branch of the plaintiff's motion which was for leave to enter a default judgment against Bongiovanni, and denied Bongiovanni's cross motion. Similarly, Bongiovanni is not aggrieved by so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Liguori. "[A] person is aggrieved [within the meaning of CPLR 5511 ] when he or she asks for relief but that relief is denied in whole or in part[, or]...