US Bank Nat'l Ass'n v. Blake-Hovanec

191 A.D.3d 821

142 N.Y.S.3d 556

US BANK NATIONAL ASSOCIATION, etc., plaintiff-respondent,

v.Christina BLAKE–HOVANEC, appellant,Law Offices of Melvin H. Bernheimer, P.C., et al., defendants-respondents, et al., defendants.

2015–04614

2015–04679

2017–07261

Index No. 31419/12

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

Argued—March 16, 2020

February 10, 2021

Christina Blake–Hovanec, East Northport, appellant pro se.

Eckert Seamans Cherin & Mellott LLC, White Plains, N.Y. (David V. Mignardi of counsel), for plaintiff-respondent.

Keane & Bernheimer, PLLC, Hawthorne, N.Y. (Jason M. Bernheimer of counsel), for defendant-respondent Law Offices of Melvin H. Bernheimer, P.C.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, N.Y. (William J. McDonald of counsel), for defendant-respondent Denise Luparello, P.C.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Christina Blake–Hovanec appeals from two orders of the Supreme Court, Suffolk County (Marlene L. Budd, J.), both dated January 23, 2015, and a judgment of foreclosure and sale of the same court (Howard H. Heckman, Jr., J.) dated May 3, 2017. The first order dated January 23, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Christina Blake–Hovanec and for an order of reference, denied the cross motion of the defendant Christina Blake–Hovanec pursuant to CPLR 3025 for leave to amend her answer to assert the affirmative defense of lack of standing and for summary judgment dismissing the complaint insofar as asserted against her and on her cross claim asserted against the defendants Law Offices of Melvin H. Bernheimer, P.C., and Denise Luparello, P.C., granted that branch of the cross motion of the defendant Law Offices of Melvin H. Bernheimer, P.C., which was pursuant to CPLR 3211(a) to dismiss the cross claim of the defendant Christina Blake–Hovanec insofar as asserted against it, and, sua sponte, in effect, directed dismissal of the cross claim of the defendant Christina Blake–Hovanec insofar as asserted against the defendant Denise Luparello, P.C. The second order dated January 23, 2015, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Christina Blake–Hovanec and referred the matter to a referee to compute the amount due to the plaintiff. The judgment of foreclosure and sale, inter alia, granted the plaintiff's unopposed motion to confirm the referee's report and directed the sale of the subject property.

ORDERED that the appeal from so much of the first order dated January 23, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Christina Blake–Hovanec and for an order of reference, denied those branches of the cross motion of the defendant Christina Blake–Hovanec which were pursuant to CPLR 3025 for leave to amend her answer to assert the affirmative defense of lack of standing and for summary judgment dismissing the complaint insofar as asserted against her, and, sua sponte, in effect, directed dismissal of the cross claim of the defendant Christina Blake–Hovanec insofar as asserted against the defendant Denise Luparello, P.C., is dismissed; and it is further,

ORDERED that the first order dated January 23, 2015, is affirmed insofar as reviewed; and it is further,

ORDERED that the appeal from the second order dated January 23, 2015, is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law and in the exercise of discretion, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Christina Blake–Hovanec and for an order of reference are denied, that branch of the cross motion of the defendant Christina Blake–Hovanec which was pursuant to CPLR 3025 for leave to amend her answer to assert the affirmative defense of lack of standing is granted, and the orders dated January 23, 2015, are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant Christina Blake–Hovanec payable by the plaintiff and one bill of costs is awarded to the defendants Law Offices of Melvin H. Bernheimer, P.C., and Denise Luparello, P.C., appearing separately and filing separate briefs, payable by the defendant Christina Blake–Hovanec.

That portion of the first order dated January 23, 2015, which, sua sponte, in effect, directed dismissal of the cross claim of the defendant Christina Blake–Hovanec insofar as asserted against the defendant Denise Luparello, P.C., is not appealable as of right (see CPLR 5701[a][2] ). Leave to appeal has not been granted and, under the circumstances of this case, we decline to grant leave to appeal (see CPLR 5701[c] ).

The appeal from the portions of the first order which granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Christina Blake–Hovanec and for an order of reference and denied those branches of the cross motion of the defendant Christina Blake–Hovanec which were pursuant to CPLR 3025 for leave to amend her answer to assert the affirmative defense of lack of standing and for summary judgment dismissing the complaint insofar as asserted against her, and the appeal from the second order must be dismissed because the right of direct appeal therefrom terminated with the entry of the 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 appeals from the remaining portions of the first order and from the second order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ). Although the judgment of foreclosure and sale was entered upon the default of the appellant in opposing the plaintiff's motion, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, appellate review of the orders dated January 23, 2015, is not precluded since the appellant may obtain review of "matters which were the subject of contest before the Supreme Court" ( Wells Fargo Bank, N.A. v. Harrigan, 179 A.D.3d 1142, 1144, 118 N.Y.S.3d 176 [internal quotation marks omitted]; McGee v. McAleer, 277 A.D.2d 207, 715 N.Y.S.2d 867 ).

The plaintiff commenced this action to foreclose a mortgage given by the defendant Christina Blake–Hovanec (hereinafter the defendant) to JPMorgan Chase Bank, N.A., the terms of which were subsequently modified by a Home Affordable Modification Agreement with Chase Home Finance, LLC. The complaint alleged that the mortgage was assigned to the plaintiff and that the plaintiff is the holder of the note and mortgage. The defendant's answer to the complaint included a cross claim against the defendants Law Offices of Melvin H. Bernheimer, P.C. (hereinafter Bernheimer), and Denise Luparello, P.C. (hereinafter Luparello), her former attorneys in an unrelated divorce action whom the plaintiff named as party defendants by virtue of their status as judgment creditors.

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 opposed the motion and cross-moved for leave to amend her answer to assert the affirmative defense of lack of standing and for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff lacked standing to commence the action and for summary judgment on her cross claim. The plaintiff, Bernheimer, and Luparello opposed the defendant's cross motion, and Bernheimer cross-moved to dismiss the defendant's cross claim insofar as asserted against it and the complaint...