Marton Associates v. Vitale

• Decision Date: 01 April 1991
• Citation: 172 A.D.2d 501,568 N.Y.S.2d 119
• Parties: MARTON ASSOCIATES, etc., Respondent, v. Peter VITALE, et al., Defendants, Anthony Ponsiglione, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 119

568 N.Y.S.2d 119

172 A.D.2d 501

MARTON ASSOCIATES, etc., Respondent, v. Peter VITALE, et al., Defendants Anthony Ponsiglione, etc., et al., Appellants.

Supreme Court, Appellate Division Second Department.

April 1, 1991.

Alfred Polizzotto, Brooklyn (Bonnie Bernstein, on the brief), for appellants.

John Z. Marangos, Staten Island, for respondent.

Before MANGANO, P.J., and LAWRENCE, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendants Anthony Ponsiglione, Charles Vogel and Joseph Romagnolo, doing business as Alaska Associates, appeal (1) from an order of the Supreme Court, Richmond County (Cusick, J.), dated October 26, 1989, which granted the plaintiff's motion for summary judgment and denied their cross motion to amend their answer, and (2) as limited by their brief, from so much of a judgment of the same court, dated March 2, 1990, as directed foreclosure and sale of the subject property.

ORDERED that the appeal from the order dated October 26, 1989, is dismissed; and it is further,

ORDERED that the judgment dated March 2, 1990 is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order of October 26, 1989 must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment 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 appeal from the intermediate order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

On May 6, 1988, the defendant Alaska Associates as mortgagor, executed a mortgage note and mortgage in favor of the plaintiff Marton Associates as mortgagee in the amount of $670,000 covering a vacant lot located on Alaska Avenue, in Richmond County. Both of these covenants contained acceleration clauses. When Alaska Associates defaulted in making the first semi-annual payment in the sum of $33,500 the plaintiff instituted the instant action to foreclose the mortgage.

The failure of the plaintiff to comply with the statutory mandate of RPAPL 1301(2) requiring that the complaint state whether any other action had been brought to recover on any part of the mortgage debt does not warrant dismissal of the complaint. Since there has been no demonstration or allegation of prejudice to the rights of any party, this defect may be ignored (see, CPLR 2001, 3025). In any event, the plaintiff subsequently satisfied the statute when it declared in motion papers that no other proceedings had been commenced for recovery of the sum sought (see, Ajello v. Michelle Ajello Co., 214 App.Div. 729, 210 N.Y.S. 819).

Summary judgment was properly granted to the plaintiff as Alaska Associates failed to assert any defenses properly raising a question of fact as to the default on the mortgage (see, Lombardi v. Pisari, 77 A.D.2d 646, 430 N.Y.S.2d 139). In support of its motion for summary judgment, the plaintiff established its case as a matter of law through the production of the mortgage...