Wells Fargo Bank, Nat'l Ass'n v. Matsuoka

212 A.D.3d 753

183 N.Y.S.3d 128

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent,

v.Toranosuke MATSUOKA, appellant, et al., defendants.

2019–07530, 2019-07531, 2020-09129

Index No. 616684/16

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

Submitted—November 14, 2022

January 18, 2023

Law Office of Maggio & Meyer, PLLC, Bohemia, NY (Holly C. Meyer of counsel), for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Sean Howland of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Toranosuke Matsuoka appeals from two orders of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), both dated May 7, 2019, and an order and judgment of foreclosure and sale (one paper) of the same court entered November 10, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike that defendant's answer, and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. The order and judgment of foreclosure and sale, upon the orders, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

Cross motion by the plaintiff, inter alia, to dismiss the appeals from the orders on the ground that the right of direct appeal from the orders terminated upon the entry of the order and judgment of foreclosure and sale in the action. By decision and order on motion of this Court dated April 21, 2021, the branch of the cross motion which is to dismiss the appeals from the orders 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 cross motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is

ORDERED that the branch of the cross motion which is to dismiss the appeals from the orders is granted; and it is further, ORDERED that the appeals from the orders are 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 defendant Toranosuke Matsuoka, to strike that defendant's 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 are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant Toranosuke Matsuoka.

The appeals from the two orders dated May 7, 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 Bank of N.Y. Mellon v. Viola, 181 A.D.3d 767, 768, 122 N.Y.S.3d 55 ). The issues raised on the appeals from the orders 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 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

On February 8, 2007, the defendant Toranosuke Matsuoka (hereinafter the defendant) executed a consolidated note in the amount of $900,000 in favor of nonparty Bank of America, N.A. (hereinafter Bank of America). The consolidated note was secured by a mortgage on certain real property located in Suffolk County. On March 1, 2011, the defendant entered into a loan modification agreement, which increased the principal owed by the defendant to $1,034,826.92.

On October 19, 2016, the plaintiff, Bank of America's purported successor in interest, commenced the instant action to foreclose the mortgage against the defendant, among others. In his answer, the defendant alleged, inter alia, that the plaintiff failed to comply with RPAPL 1304.

On December 24, 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In support, the plaintiff submitted an affidavit of Takesha Brown, an employee of Nationstar Mortgage, LLC (hereinafter Nationstar), the plaintiff's loan servicer. Brown stated that she was familiar with Nationstar's records and record-keeping practices. Regarding the mailing of the RPAPL 1304 notice, Brown stated, "Plaintiff, by and through its agents, mailed to Defendant via certified mail and first class mail the 90–Day Pre–Foreclosure Notices pursuant to RPAPL 1304, to the last known address of the Defendant, which is also the address of the Subject Premises. I am familiar with Plaintiff's practices and procedures pertaining to the mailing of the 90–Day Pre–Foreclosure...