Chemical Bank v. Buxbaum
| Citation | 76 A.D.2d 850,428 N.Y.S.2d 523 |
| Parties | CHEMICAL BANK, Respondent-Appellant, v. David C. BUXBAUM, Appellant-Respondent; Solomon Buxbaum, Intervenor-Appellant-Respondent. |
| Decision Date | 09 June 1980 |
| Court | New York Supreme Court — Appellate Division |
David C. Buxbaum, P. C., New York City (Stephen Schlakman and Jamie Wolfe, New York City, of counsel), appellant-respondent pro se and for intervenor-appellant-respondent.
Pedowitz & Bergman, Garden City (Bruce J. Bergman, Garden City, of counsel), for respondent-appellant.
Before HOPKINS, J. P., and DAMIANI, GULOTTA and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, defendant, David C. Buxbaum, appeals from an order of the Supreme Court, Kings County, dated November 14, 1978, which, inter alia, directed him to pay $450 per month to a receiver. Defendant and the intervenor, Solomon Buxbaum, appeal from other orders of the same court as follows: (1) dated April 24, 1979, which denied their motion to vacate the decision which awarded plaintiff counsel fees; (2) dated May 23, 1979, which denied their motion to cancel the lis pendens on the property; (3) dated July 16, 1979, which denied their motion to set aside an order dated February 13, 1979, which, inter alia, granted plaintiff's application to fix counsel fees; (4) dated July 23, 1979, which, inter alia, ordered defendant to pay real estate taxes on the property and to pay the receiver $450 per month; and (5) dated August 9, 1979, which denied their application to discharge the temporary receiver. Plaintiff, Chemical Bank, appeals from two orders of the same court, as follows: (1) dated December 1, 1978, which, inter alia, stayed the foreclosure sale pursuant to section 1341 of the Real Property Actions and Proceedings Law; and (2) dated June 22, 1979, which denied plaintiff's motion to vacate the stay of the foreclosure sale.
Appeal from the order denied April 24, 1979, which denied a motion to vacate the decision awarding counsel fees, dismissed, without costs or disbursements. No appeal lies from such an order (see Stahl v. Stahl, 11 A.D.2d 943, 205 N.Y.S.2d 165). We deem the notice of appeal from that order to be from the order dated April 23, 1979 (COOPER, J.), which awarded plaintiff counsel fees of $8,962.50.
Orders dated November 14, 1978, December 1, 1978, May 23, 1979, June 22, 1979, July 16, 1979, July 23, 1979 and August 9, 1979, affirmed, without costs or disbursements. No opinion.
Order dated April 23, 1979, which awarded the plaintiff $8,962.50 as counsel fees, modified, on the law, by deleting the second decretal paragraph thereof, which amended the judgment of foreclosure and sale to include the said award. As so modified, said order affirmed, without costs or disbursements, and without prejudice to the parties pursuing whatever additional remedies they may deem advisable.
In the underlying foreclosure action, plaintiff's application for counsel fees was initially denied in an order dated August 4, 1978 and, on August 10, 1978, a judgment of foreclosure and sale was entered which contained no provision for counsel fees in accordance with the aforementioned order. Subsequently, however, by order to show cause dated August 23, 1978, plaintiff moved for an order permitting it to proceed with the foreclosure sale without prejudice to a later application to resettle the judgment to include an award of counsel fees. On September 26, 1978 Mr. Justice PINO (the same Justice who had signed the order dated August 4, 1978) granted that unorthodox motion "without prejudice to (plaintiff's) pursuing its remedies for counsel fees and real estate taxes." No appeal was taken from that order and, on February 13, 1979, the same court inter alia granted so much of plaintiff's motion as sought the fixation of counsel fees in the foreclosure action and ordered that a hearing be held to determine the amount. That hearing was held on March 1, 1979 and, on March 20, 1979, a decision was rendered fixing the amount at $8,962.50. Thereafter, in a series of orders dated April 23 and 24, 1979, respectively, (1) pla...
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