Cent. Mortg. Co. v. Resheff

• Decision Date: 24 February 2016
• Citation: 136 A.D.3d 962,26 N.Y.S.3d 323
• Parties: CENTRAL MORTGAGE COMPANY, respondent, v. Doron RESHEFF, et al., defendants, Karen Resheff, appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 962

26 N.Y.S.3d 323

CENTRAL MORTGAGE COMPANY, respondent,

v. Doron RESHEFF, et al., defendants,Karen Resheff, appellant.

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

Feb. 24, 2016.

J. Douglas Barics, Garden City, N.Y., for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Alan J. Waintraub, Lisa Baldesweiler, and Megan McNamara of counsel), for respondent.

THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN and COLLEEN D. DUFFY, JJ.

In an action to foreclose a mortgage, the defendant Karen Resheff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), dated June 24, 2013, as, in effect, granted that branch of the plaintiff's motion which was for leave to renew its prior motion, inter alia, for summary judgment on the complaint, which had been denied in an order of the same court dated September 28, 2012, and, upon renewal, in effect, vacated the determination in the order dated September 28, 2012, and thereupon granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against Karen Resheff, and (2) from a judgment of foreclosure and sale of the same court (Jamieson, J.), dated April 25, 2014, which, upon the order dated June 24, 2013, among other things, directed the sale of the subject premises.

ORDERED that the appeal from the order dated June 24, 2013, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law, without costs or disbursements, that branch of the plaintiff's motion which was for leave to renew its prior motion, inter alia, for summary judgment on the complaint is denied, and an order of the Supreme Court, Westchester County, dated May 28, 2013, and the order dated June 24, 2013, are modified accordingly.

The appeal from the order dated June 24, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment 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 that order are brought up for review and have been considered on the appeal from the judgment (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 ).

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Karen Resheff, and thereafter moved for summary judgment on the complaint. In an order dated September 28, 2012, the Supreme Court denied summary judgment to the plaintiff on the ground that the plaintiff failed to submit sufficient evidence of the mortgagor's default. In two subsequent orders dated May 28, 2013, and June 24, 2013, the court, upon granting the plaintiff leave to renew, in effect, vacated its determination in the September 28, 2012, order and awarded summary judgment to the plaintiff. A judgment of foreclosure and sale dated April 25, 2014, among other things, directed the sale of the subject premises.

A motion for leave to...