CitiMortgage, Inc. v. Borek
| Citation | 97 N.Y.S.3d 657,171 A.D.3d 848 |
| Decision Date | 10 April 2019 |
| Docket Number | 2018–07797,Index No. 21804/13,2017–01347,2016–11096 |
| Parties | CITIMORTGAGE, INC., Respondent, v. Amelia BOREK, etc., et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court Appellate Division |
171 A.D.3d 848
97 N.Y.S.3d 657
CITIMORTGAGE, INC., Respondent,
v.
Amelia BOREK, etc., et al., Appellants, et al., Defendant.
2016–11096
2017–01347
2018–07797
Index No. 21804/13
Supreme Court, Appellate Division, Second Department, New York.
Argued—December 10, 2018
April 10, 2019
Meyers Tersigni Feldman & Gray, LLP, New York, N.Y. (Anthony L. Tersigni and Andrea Tersigni of counsel), for appellants.
Akerman, LLP, New York, N.Y. (Jordan M. Smith of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Amelia Borek and Jesse Borek appeal from two orders of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), both dated September 14, 2016, and a judgment of foreclosure and sale entered May 2, 2018. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Amelia Borek, to strike her answer, affirmative defenses, and third counterclaim, for leave to enter a default judgment against the defendant Jesse Borek upon his failure to appear or answer the complaint, and for an order of reference, and denied those branches of the cross motion of the defendants Amelia Borek and Jesse Borek which were for summary judgment dismissing the complaint insofar as asserted against the defendant Amelia Borek for lack of standing and pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Jesse Borek as abandoned. The second order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Amelia Borek, to strike her answer, affirmative defenses, and third counterclaim, for leave to enter a default judgment against the defendant Jesse Borek upon his failure to appear or answer the complaint, and for an order of reference, and referred the matter to a referee to compute the amount due on the mortgage loan. The judgment of foreclosure and sale directed foreclosure of the mortgage and sale of the mortgaged property.
ORDERED that the appeals from the orders dated September 14, 2016, are dismissed; and it is further,
ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
The appeals from the orders dated September 14, 2016, 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 appeals from the orders are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ).
In September 2003, the defendants James Borek and Amelia Borek executed a note in the sum of $322,700 in favor of ABN AMRO Mortgage Group, Inc. (hereinafter
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