Nationstar Mortg., LLC v. Paganini
| Decision Date | 10 February 2021 |
| Docket Number | 2019–02900,2019–02899,Index No. 52059/16 |
| Citation | 191 A.D.3d 790,142 N.Y.S.3d 548 |
| Parties | NATIONSTAR MORTGAGE, LLC, respondent, v. Celso PAGANINI, appellant, et al., defendants. (Appeal No. 1) Wells Fargo Bank, National Association, respondent, v. Celso Paganini, appellant, et al., defendants. (Appeal No. 2) |
| Court | New York Supreme Court — Appellate Division |
191 A.D.3d 790
142 N.Y.S.3d 548
NATIONSTAR MORTGAGE, LLC, respondent,
v.
Celso PAGANINI, appellant, et al., defendants. (Appeal No. 1)
Wells Fargo Bank, National Association, respondent,
v.
Celso Paganini, appellant, et al., defendants. (Appeal No. 2)
2019–02899
2019–02900
Index No. 52059/16
Supreme Court, Appellate Division, Second Department, New York.
Argued—October 8, 2020
February 10, 2021
Clair & Gjertsen, White Plains, N.Y. (Mary Aufrecht of counsel), for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Brian P. Scibetta and Sean Howland of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Celso Paganini appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated February 14, 2019, and (2) an order and judgment of foreclosure and sale (one paper) of the same court, also dated February 14, 2019. The order, in effect, granted the motion of Nationstar Mortgage, LLC,
the respondent in Appeal No. 1, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The order and judgment of foreclosure and sale, upon an order of the same court dated June 30, 2017, upon an order of the same court entered January 20, 2018, and upon the order dated February 14, 2019, inter alia, directed the sale of the subject property.
ORDERED that the appeal from the order dated February 14, 2019, is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the order dated February 14, 2019, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale (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 order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).
On February 28, 2007, the defendant Celso Paganini (hereinafter the defendant) executed a note in the sum of $2,242,500. The note was secured by a mortgage on certain residential property in Harrison. The defendant allegedly defaulted on the loan by failing to make the monthly installment payment due on August 1, 2009, or any payments thereafter. On September 8, 2009, a 90–day preforeclosure notice pursuant to RPAPL 1304 was sent by certified and first-class mail to the defendant's residence. The plaintiffs' predecessor in interest, Aurora Loan Services, LLC (hereinafter Aurora), allegedly came into possession of the note on February 2, 2010. Aurora commenced the instant foreclosure action on February 5, 2010, against the defendant, among others.
Aurora moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated April 6, 2012, the Supreme Court, among other things, (1) denied those branches of Aurora's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and (2) determined that Aurora had established its standing to maintain the instant action. After a second unsuccessful motion, inter alia, for summary judgment, Aurora made a third motion, among other things, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated December 21, 2016, the court granted Aurora's third summary...
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