Bank of Am., Nat'l Ass'n v. Schwartz

• Decision Date: 24 November 2021
• Docket Number: 2017–02918, 2017–02920, 2019–01630,Index No. 32626/14
• Citation: 199 A.D.3d 975,158 N.Y.S.3d 198
• Parties: BANK OF AMERICA, NATIONAL ASSOCIATION, respondent, v. Susan SCHWARTZ, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 975

158 N.Y.S.3d 198

BANK OF AMERICA, NATIONAL ASSOCIATION, respondent,

v.Susan SCHWARTZ, et al., appellants, et al., defendant.

2017–02918, 2017–02920, 2019–01630

Index No. 32626/14

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

Argued—October 15, 2021

November 24, 2021

Jeremy Rosenberg, New York, NY, for appellants.

Gross Polowy, LLC (Reed Smith, LLP, New York, N.Y. [Andrew B. Messite and Joseph B. Teig ], of counsel]), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendants Susan Schwartz and Laszlo Schwartz appeal from two orders of the Supreme Court, Rockland County (Gerald E. Loehr, J.), both dated February 14, 2017, and an order and judgment of foreclosure and sale (one paper) of the same court dated January 10, 2019. The first order dated February 14, 2017, insofar as appealed from, 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 answer, for an order of reference, and to vacate, cancel, and expunge a satisfaction and discharge of mortgage recorded on November 18, 2005, and denied those defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them. The second order dated February 14, 2017, insofar as appealed from, granted and denied the same relief, appointed a referee to compute the amount due to the plaintiff, and vacated, cancelled, and expunged the satisfaction and discharge of mortgage recorded on November 18, 2005. The order and judgment of foreclosure and sale, among other things, granted the plaintiff's motion to confirm the referee's report and directed the sale of the subject property.

By order to show cause dated November 1, 2019, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals from the orders dated February 14, 2017, on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment of foreclosure and sale. By decision and order on motion of this Court dated July 1, 2020, the motion 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.

Now, upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the motion to dismiss the appeals from the orders dated February 14, 2017, is granted; and it is further,

ORDERED that the appeals from the orders dated February 14, 2017, are dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

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

The appeals from the orders dated February 14, 2017, 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 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] ).

On October 31, 2003, the defendant Susan Schwartz obtained a loan from Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), in the amount of $600,000, secured by a mortgage held by Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Greenpoint. On April 12, 2005, the defendants Susan Schwartz and Laszlo Schwartz (hereinafter together the defendants) obtained a second mortgage loan in the amount of $8,421.28 from Greenpoint, and executed a "Consolidation, Extension, and Modification Agreement" (hereinafter CEMA), pursuant to which the first and second notes and mortgages were consolidated into a single lien in the sum of $600,000. MERS, as nominee for Greenpoint, executed a satisfaction of the first mortgage dated October 31, 2005, reflecting the full satisfaction and discharge of the first mortgage; the satisfaction was filed with the Rockland County Clerk on November 18, 2005.

In June 2014, the plaintiff commenced this action against the defendants, among others, to foreclose the consolidated mortgage, to cancel and vacate the satisfaction of the first mortgage, and to restore the first mortgage. The complaint alleged, inter alia, that the satisfaction of mortgage had been prepared "[t]hrough...