Branch Banking & Trust Co. v. Jacobson

• Decision Date: 05 May 2021
• Docket Number: Index No. 20325/12,2020–02339
• Parties: BRANCH BANKING AND TRUST COMPANY, respondent, v. Yosef Yitzchak JACOBSON, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 685

143 N.Y.S.3d 596 (Mem)

BRANCH BANKING AND TRUST COMPANY, respondent,

v.Yosef Yitzchak JACOBSON, appellant, et al., defendants.

2020–02339

Index No. 20325/12

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

Argued—February 25, 2021

May 5, 2021

Zilberberg Einhorn Karpel, P.C., Syosset, N.Y. (Samuel Karpel and Mendel Zilberberg of counsel), for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, N.Y. (Joseph F. Battista and Leah Lenz 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 defendant Yosef Yitzchak Jacobson appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated January 7, 2020. The order, insofar as appealed from, denied that branch of his motion which was pursuant to CPLR 5015(a)(2) to vacate a judgment of foreclosure and sale dated August 27, 2018, entered upon his default in opposing the plaintiff's motion for summary judgment, and thereupon, to vacate an order of the same court dated June 16, 2015.

ORDERED that the order dated January 7, 2020, is affirmed insofar as appealed from, with costs.

On October 12, 2012, the plaintiff commenced this action against the defendant Yosef Yitzchak Jacobson (hereinafter the defendant), among others, to foreclose a mortgage on certain property in Brooklyn. The defendant interposed an answer with affirmative defenses and counterclaims. The plaintiff served a reply to the counterclaims. In September 2014, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and counterclaims, and for an order of reference. The defendant failed to oppose the motion. In an order dated June 16, 2015 (hereinafter the order of reference), the Supreme Court granted the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff.

Thereafter, in January 2016, the plaintiff moved for a judgment of foreclosure and sale. The defendant cross-moved, among other things, pursuant to CPLR 5015(a)(1) to vacate his default in opposing the plaintiff's motion, inter alia, for summary judgment. In an order dated August 27, 2018, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The court entered a judgment of foreclosure and sale, also dated August 27, 2018.

In November 2018, the defendant moved, inter alia, for leave to renew and/or reargue that branch of his prior cross motion which was pursuant to CPLR 5015(a)(1) to vacate his default in opposing the plaintiff's motion, among other things, for summary judgment, and, upon renewal and/or reargument, to vacate the order of reference and the judgment of foreclosure and sale. By order dated March 4, 2019, the Supreme Court denied the motion (see Branch Banking and Trust Company v. Jacobson, ––– A.D.3d ––––, 143 N.Y.S.3d 599 [Appellate Division Docket No. 2018–14555; decided herewith] ).

In June 2019, the defendant moved, among other things, pursuant to CPLR 5015(a)(2) to vacate the judgment of foreclosure and sale, and thereupon, to vacate the order of reference. In support, the defendant submitted the affirmation of his attorney, who answered the complaint on his behalf. The plaintiff opposed the motion. In an order dated...