U.S. Bank N.A. v. Nur

171 N.Y.S.3d 920 (Mem)

U.S. BANK N.A., etc., respondent,

v.Mohammad NUR, et al., defendants,Jefferson & Sons, LLC, defendant-appellant;

Eleven Forty, Inc., nonparty-appellant.

2019–07389

Index No. 517399/17

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

Argued—May 10, 2022

August 17, 2022

Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for defendant-appellant and nonparty-appellant.

McCarter & English, LLP, New York, NY (Adam M. Swanson and Jessie D. Bonaros of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., appeal from an order of the Supreme Court, Kings County (Noach Dear, J.), dated May 15, 2019. The order denied the motion of the defendant Jefferson & Sons, LLC, to compel the plaintiff to accept its late answer.

ORDERED that the appeal by nonparty Eleven Forty, Inc., is dismissed, as it is not aggrieved by the order appealed from (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 order is affirmed on the appeal by the defendant Jefferson & Sons, LLC; and it is further,

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

In September 2017, the plaintiff commenced this action against the defendant Jefferson & Sons, LLC (hereinafter the defendant), among others, to foreclose a mortgage on residential property located in Brooklyn. The defendant failed to interpose a timely answer. In August 2018, the defendant transferred its interest in the property to nonparty Eleven Forty, Inc. Thereafter, in October 2018, the defendant moved to compel the plaintiff to accept its late answer. In an order dated May 15, 2019, the Supreme Court denied the defendant's motion. The defendant appeals.

Since the defendant transferred the property to Eleven Forty, Inc., after this action was commenced, the Supreme Court properly determined that the defendant no longer had any interest in the property and, therefore, lacked standing to defend the action (see Moret, LLC v. NewBank, 194 AD3d 809; Valiotis v. Bekas, 191 A.D.3d 1037, 143 N.Y.S.3d 74 ; U.S. Bank N.A. v. Davids, 188 A.D.3d 943, 132 N.Y.S.3d 315 ; Totaram v. Gibson, 179 A.D.3d 451, 113 N.Y.S.3d 539 ; Bancplus Mtge. Corp. v. Galloway, 203 A.D.2d 222, 610 N.Y.S.2d 60 ).

In light of our determination, we need not consider...