U.S. Bank Nat'l Ass'n v. Fuller-Watson

197 A.D.3d 764

150 N.Y.S.3d 579 (Mem)

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

v.Vena FULLER–WATSON, appellant, et al., defendants.

2018-14250, 2019-08797

Index No. 25063/08

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

Argued—May 11, 2021

August 25, 2021

Anthony J. LoPresti, Garden City, N.Y. (Gail M. Blasie of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Kenneth J. Flickinger of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Vena Fuller–Watson appeals from (1) a judgment of foreclosure and sale of the Supreme Court, Queens County (Orin R. Kitzes, J.), entered October 6, 2011, and (2) an order of the same court (Carmen R. Velasquez, J.) entered September 20, 2018. The judgment of foreclosure and sale, inter alia, directed the sale of the subject property. The order, insofar as appealed from, denied that branch of the motion of the defendant Vena Fuller–Watson which was for leave to renew with respect to the plaintiff's prior motion, inter alia, for summary judgment on the complaint insofar asserted against her and for an order of reference, and the plaintiff's prior motion, inter alia, for a judgment of foreclosure and sale.

Motion by the plaintiff, inter alia, to dismiss the appeal from the judgment of foreclosure and sale on the ground that no appeal lies from a judgment entered upon the default of the appealing party. By decision and order on motion of this Court dated December 2, 2019, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the judgment of foreclosure and sale on the ground that no appeal lies from a judgment entered upon the default of the appealing party is granted; and it is further,

ORDERED that the appeal from the judgment of foreclosure and sale is dismissed; and it is further,

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

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

In August 2005, the defendant Vera Fuller–Watson (hereinafter the defendant) borrowed the sum of $425,000 from the plaintiff's predecessor in interest and, as security for the loan, executed a mortgage encumbering certain real property located in Hollis. In October 2008, the plaintiff commenced this action to foreclose the mortgage against the defendant, among others. According to an affidavit of service, on October 16, 2008, the defendant was served with the summons and complaint. Thereafter, the defendant, acting pro se, interposed an answer dated November 11, 2008. In April 2009, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant failed to oppose the motion. In an order dated September 8, 2009, the Supreme Court granted the plaintiff's unopposed motion. In June 2011, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. The defendant failed to oppose this motion as well. In an order dated September 23, 2011, the court granted the plaintiff's unopposed motion and directed that a judgment be submitted. A judgment of foreclosure and sale was entered on October 6, 2011.

In December 2011, the Supreme Court denied the defendant's motion to vacate the judgment of foreclosure and sale. In April 2013, the defendant moved, inter alia, to vacate the judgment of foreclosure and sale and to stay the foreclosure sale of the property scheduled for April 12, 2013. In an order dated April 24, 2013, the court denied the motion. In March 2018, the defendant moved, inter alia, for leave to renew with respect to the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her and the plaintiff's motion, inter alia, for a judgment of foreclosure and sale. In an order entered September 20, 2018, the Supreme Court, inter alia, denied that branch of the defendant's motion as untimely. The defendant appeals from the judgment of foreclosure and sale and the order entered September 20, 2018.

The defendant failed to submit papers in opposition to the plaintiff's motion, inter alia, for a judgment of foreclosure and sale. "No appeal lies from an order or judgment granted upon the default of the appealing party" ( Rodriguez–Dominguez v. Blackstone Contrs., LLC, 191 A.D.3d 817, 817, 138 N.Y.S.3d 370 ; see CPLR 5511 ). In addition, the defendant is precluded on the appeal from the judgment of foreclosure and sale from challenging the propriety of the order granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her, because the defendant also failed to oppose that motion (see Wells Fargo Bank, N.A. v. Harrigan, 179 A.D.3d 1142, 1143, 118 N.Y.S.3d 176 ; Wells Fargo Bank, N.A. v. Estwick, 160 A.D.3d 911, 911, 76 N.Y.S.3d 65 ). Accordingly, the appeal from the judgment of foreclosure and sale...