Cent. Mortg. Co. v. Jahnsen

• Decision Date: 03 May 2017
• Citation: 150 A.D.3d 661,56 N.Y.S.3d 107
• Parties: CENTRAL MORTGAGE COMPANY, respondent, v. Susan JAHNSEN, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 661
56 N.Y.S.3d 107

CENTRAL MORTGAGE COMPANY, respondent,
v.
Susan JAHNSEN, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, et al., appellants, et al., defendants.

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

May 3, 2017.

56 N.Y.S.3d 108

Charles H. Wallshein, Melville, N.Y., for appellants.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Kevin M. Butler of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

In an action to foreclose a mortgage, the defendants Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, and Antonio J. Ferrara appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated September 3, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them, and denied that branch of their cross motion which was for further discovery pursuant to CPLR 3212(f), and (2) from a judgment of foreclosure and sale of the same court entered September 12, 2016, which, upon the order, is in favor of the plaintiff and against them, among other things, directing the sale of the subject premises.

ORDERED that the appeals by the defendant Antonio J. Ferrara are dismissed as abandoned; and it is further,

ORDERED that the appeal by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, from the order is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is affirmed on the appeal by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile; and it is further,

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

56 N.Y.S.3d 109

The appeals by the defendant Antonio J. Ferrara must be dismissed as abandoned, as the brief submitted by the appellants does not request reversal of any portion of the order or judgment of foreclosure and sale with respect to him. The appeal from the order by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile (hereinafter the appellant), 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 appeal from the 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] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

On March 17, 2005, the appellant executed an adjustable rate note promising to repay Downey Savings and Loan Association, F.A. (hereinafter the original lender) the principal sum of $337,500. The loan was secured by a duly recorded mortgage on a residential property in Center Moriches. The note was later transferred to the plaintiff by physical delivery. The appellant defaulted on the loan by failing to make her monthly mortgage payment that became due on September 1, 2009, and each month thereafter. The plaintiff sent the appellant notice of her default, but she did not cure the default.

The plaintiff commenced this foreclosure action in June 2011, and the appellant filed an answer. The plaintiff moved, inter alia, for summary judgment on the complaint, but withdrew the motion after the appellant filed for bankruptcy and an automatic stay of the action went into effect. After the stay was lifted in December 2012, the plaintiff re-filed its motion. The appellant cross-moved, inter alia, for additional discovery pursuant to CPLR 3212(f). In an order dated September 3, 2014, the Supreme Court awarded the plaintiff summary judgment on the complaint, and denied the cross motion. A judgment of foreclosure and sale was entered upon the order on September 12, 2016.

The primary issue presented on this appeal is whether the plaintiff established standing to foreclose the mortgage on the appellant's property. Where, as here, standing is put into issue by the defendant,...