HSBC Bank USA, Nat'l Ass'n v. Epstein
| Citation | 154 N.Y.S.3d 271 (Mem),199 A.D.3d 790 |
| Decision Date | 10 November 2021 |
| Docket Number | Index No. 135135/14,2018–12605 |
| Parties | HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Richard EPSTEIN, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
199 A.D.3d 790
154 N.Y.S.3d 271 (Mem)
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,
v.
Richard EPSTEIN, appellant, et al., defendants.
2018–12605
Index No. 135135/14
Supreme Court, Appellate Division, Second Department, New York.
Argued—October 21, 2021
November 10, 2021
Michael P. Braunsberg, Staten Island, NY, for appellant.
Reed Smith LLP, New York, N.Y. (Kerren B. Zinner and Andrew B. Messite of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, ANGELA G. IANNACCI, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Richard Epstein appeals from a judgment of foreclosure and sale of the Supreme Court, Richmond County (Desmond A. Green, J.), dated July 30, 2018. The judgment of foreclosure and sale, inter alia, directed the sale of the subject property.
Motion by the respondent to dismiss the appeal on the ground that no appeal lies from a judgment entered upon the default of the appealing party. By decision and order on motion dated April 16, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appeal is dismissed, with costs.
In this mortgage foreclosure action, the appellant failed to submit papers in opposition to the plaintiff's motion for a judgment of foreclosure and sale, and the motion was granted on default. No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511 ; Bank of Am., N.A. v. Unknown Heirs of the Estate of Hagglund, 192 A.D.3d 855, 140 N.Y.S.3d 741 ; Alvarez v. Jawaid, 163 A.D.3d 746, 747, 81 N.Y.S.3d 591 ). Since the judgment of foreclosure and sale was entered upon the appellant's default in opposing the motion, and the appellant has not raised any other issue which was the subject of contest in the Supreme Court, the appeal from the judgment of...
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