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

194 A.D.3d 884

149 N.Y.S.3d 101

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Mitch PEYKAR, et al., appellants, et al., defendants.

2019–08485, 2020–02390

Index No. 705684/16

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

Submitted—February 25, 2021

May 12, 2021

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

Aldridge Pite LLP, Melville, N.Y. (Kenneth Sheehan of counsel), for respondent.

REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Mitch Peykar and Shelly Peykar appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered April 5, 2019, and an order and judgment of foreclosure and sale (one paper) of the same court entered February 28, 2020. The order, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike their verified amended answer, and for an order of reference. The order and judgment of foreclosure and sale, upon an order of the same court entered December 10, 2019, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, among other things, directed the sale of the subject property.

ORDERED that the appeal from the order entered April 5, 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 plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Mitch Peykar and Shelly Peykar, to strike their verified amended answer, and for an order of reference are denied, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, and the orders entered April 5, 2019, and December 10, 2019, are modified accordingly; and it is further,

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

The appeal from the order entered April 5, 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 appeal from the order 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 ).

The plaintiff commenced this action to foreclose a mortgage on real property owned by the defendants Mitch Peykar and Shelly Peykar (hereinafter together the defendants). The mortgage secured a note executed by the defendants, in which they promised to repay a loan in the amount of $352,750. In their verified amended answer to the complaint, the defendants raised numerous affirmative defenses, including failure to comply with the notice provisions of the mortgage as well as RPAPL 1304.

The plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants, to strike their verified amended answer, and for an order of reference. In an order entered April 5, 2019, the Supreme Court granted the plaintiff's motion. Upon receipt of the referee's report, the plaintiff moved to confirm the report and for a judgment of foreclosure and sale. In an order entered December 10, 2019, the court granted the motion. In an order and judgment of foreclosure and sale entered February 28, 2020, the court, among other things, directed the sale of the subject property. The defendants appeal.

The Supreme Court erred in concluding, in effect, that the plaintiff met its prima facie evidentiary burdens with respect to compliance with the notice requirements of RPAPL 1304 and the mortgage agreement. "In a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" ( HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d 667, 669, 107 N.Y.S.3d 138 [internal...