Persaud v. U.S. Bank Nat'l Ass'n

197 A.D.3d 1120

150 N.Y.S.3d 615 (Mem)

Beata PERSAUD, respondent,

v.U.S. BANK NATIONAL ASSOCIATION, etc., appellant, et al., defendants.

2019–00233, 2021–01268

Index No. 710060/17

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

Argued—June 10, 2021

September 1, 2021

Stern & Eisenberg, P.C. (Knuckles Komosinski & Manfro LLP, Elmsford, N.Y. [Gregg L. Verrilli and Louis A. Levithan ], of counsel), for appellant.

Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondent.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the defendant U.S. Bank National Association appeals from (1) an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered November 7, 2018, and (2) an order and judgment (one paper) of the same court entered November 20, 2018. The order granted the plaintiff's motion for summary judgment on the complaint, to strike that defendant's answer and affirmative defenses, and to cancel and discharge of record a mortgage dated March 11, 2008. The order and judgment, upon the order, inter alia, granted the same relief and directed the County Clerk, Queens County, to cancel and discharge of record the mortgage dated March 11, 2008.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the order and judgment is affirmed; and it is further,

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

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment 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 are brought up for review and have been considered on the appeal from the order and judgment (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 February 2006, the plaintiff executed and delivered a note in the amount of $588,000 to Fairmont Funding, Ltd. The loan was secured by a mortgage encumbering certain property in Richmond Hill.

On or about March 11, 2008, the plaintiff borrowed an additional $10,467 from Wells Fargo Bank, N.A. (hereinafter Wells Fargo). The loan was memorialized and secured by a second note and mortgage and consolidated with the first loan by a consolidation, extension, and modification agreement dated March 11, 2008, forming a single lien in the sum of $590,000 (hereinafter the consolidated mortgage).

On December 1, 2009, Wells Fargo commenced an action to foreclose the consolidated mortgage (hereinafter the 2009 action). However, by order dated December 24, 2013, the Supreme Court directed dismissal of the complaint in the 2009 action pursuant to CPLR 3215(c). In the interim, by summons and complaint dated March 14, 2011, Wells Fargo commenced a second action to foreclose the consolidated mortgage (hereinafter the 2011 action). The plaintiff appeared in the second action, alleging that she was not properly served with the summons and complaint. By order dated August 19, 2015, after a hearing to determine the validity of service of process, the Supreme Court directed dismissal of the complaint in the 2011 action without prejudice.

On July 21, 2017, the plaintiff commenced the instant action against, among others, the defendant U.S. Bank National Association (hereinafter U.S. Bank), the assignee of the subject loan, to cancel and discharge of record the consolidated mortgage and for related declaratory and injunctive relief. After U.S. Bank interposed an answer, the plaintiff moved for summary judgment on the complaint, to strike U.S. Bank's answer and affirmative defenses, and to discharge of record the consolidated mortgage. U.S. Bank opposed the motion.

In an order entered November 7, 2018, the Supreme Court granted the plaintiff's motion. On November 20, 2018, the court entered an order and judgment, inter alia, granting the same relief and directing the County Clerk, Queens County, to cancel and discharge of record the consolidated mortgage dated March 11, 2008. U.S. Bank appeals.

"Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge of record that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has...