Hodge v. Baptiste

• Decision Date: 19 February 2014
• Parties: Connie HODGE, respondent, v. Marie BAPTISTE, et al., defendants, Bank of America, N.A., etc., appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 830
980 N.Y.S.2d 806
2014 N.Y. Slip Op. 01150

Connie HODGE, respondent,
v.
Marie BAPTISTE, et al., defendants,
Bank of America, N.A., etc., appellant.

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

Feb. 19, 2014.

Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger and Chris M. LaRocco of counsel), for appellant.

In an action, inter alia, to set aside a conveyance of real property, the defendant

[980 N.Y.S.2d 807]

Bank of America, N.A., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated May 7, 2012, as, in denying its cross motion to direct the plaintiff to make monthly payments for, among other things, her use and occupancy of the subject property during the pendency of the action, made a finding that it did not “own [ ]” the subject note and mortgage.

ORDERED that the appeal is dismissed, without costs or disbursements, as the appellant is not aggrieved by the portion of the order appealed from ( seeCPLR 5511).

In an order dated May 7, 2012, the Supreme Court denied the appellant's cross motion to direct the plaintiff to make monthly payments for, among other things, her use and occupancy of the subject real property during the pendency of the action. The appellant was aggrieved by the denial of its cross motion ( see CPLR 5511). However, while the appeal from the order dated May 7, 2012, was pending, the Supreme Court, in an order dated November 26, 2012, granted the appellant's motion to dismiss the complaint insofar as asserted against it. In its brief on appeal, the appellant does not seek an award of the relief sought by its cross motion. Instead, it seeks reversal of stated portions of the order dated May 7, 2012, based upon reasoning set forth therein by the Supreme Court, which the appellant alleges may prejudice it in future proceedings.

The appellant is not aggrieved by the reasoning set forth by the Supreme Court. “[T]he concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor” ( Mixon v. TBV, Inc., 76 A.D.3d 144, 149, 904 N.Y.S.2d 132;see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544–545, 470 N.Y.S.2d 564, 458 N.E.2d 1241). Since the Supreme Court's finding that the appellant did not “own[ ]” the subject note and mortgage was made sua sponte ( see U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 921 N.Y.S.2d 320), and, thus, deprived the appellant of a full and fair...