Excel Capital Grp. Corp. v. 225 Ross St. Realty, Inc.
| Decision Date | 31 October 2018 |
| Docket Number | Index No. 1732/14,2015–11460 |
| Citation | 84 N.Y.S.3d 914 (Mem),165 A.D.3d 1233 |
| Parties | EXCEL CAPITAL GROUP CORP., Respondent, v. 225 ROSS STREET REALTY, INC., Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Andrew Citron, New York, NY, for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Bruce J. Bergman, of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant 225 Ross Street Realty, Inc., appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated October 2, 2015. The 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 that defendant, to strike that defendant's answer, affirmative defenses, and counterclaims, and to appoint a referee to compute the amount due to the plaintiff.
ORDERED that the appeal is dismissed, with costs.
The appeal from the order dated October 2, 2015, must be dismissed because the right of direct appeal therefrom terminated with 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] ; Excel Capital Group Corp. v. 225 Ross Street Realty, Inc., 165 A.D.3d 1233, 87 N.Y.S.3d 604, 2018 WL 5624025 [Appellate Division Docket No. 2017–00596; decided herewith] ).
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