U.S. Bank Nat'l Ass'n v. Mask
| Decision Date | 25 May 2016 |
| Docket Number | 2015-01452, 2015-07497, 2015-07499, Index No. 14124/08. |
| Citation | 139 A.D.3d 1043,30 N.Y.S.3d 713,2016 N.Y. Slip Op. 04041 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Delavern MASK, respondent, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F. Battista of counsel), for appellant.
Kenneth R. Berman, Forest Hills, NY, for respondent.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Velasquez, J.), dated May 7, 2014, which denied its motion to vacate an order of reference of the same court dated July 28, 2010, and for a new order of reference, and granted the cross motion of the defendant Delavern Mask to dismiss the complaint as abandoned pursuant to CPLR 3215(c), (2)
a judgment of the same court dated November 17, 2014, which, upon the order dated May 7, 2014, is in favor of the defendants and against it dismissing the complaint as abandoned pursuant to CPLR 3215(c), and (3) an order of the same court dated April 13, 2015, which denied its motion to vacate the order dated May 7, 2014.
ORDERED that the plaintiff is awarded one bill of costs.
The appeal from the order dated May 7, 2014, must be dismissed because the right of direct appeal therefrom terminated upon the entry of the 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 the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
In May 2008 the plaintiff commenced this action to foreclose a mortgage and served the defendant Delavern Mask with the summons and complaint. Mask did not answer. In February 2009, the plaintiff moved for an order of reference. The Supreme Court granted the motion in July 2010. In April 2012, almost four years after the action had been commenced, Mask moved to vacate her default. On April 23, 2012, two days before the return date on Mask's motion, the plaintiff and Mask entered into a stipulation. By that stipulation, Mask withdrew her motion to vacate her default. Additionally, the plaintiff agreed to accept Mask's answer and to consent to vacatur of the default and the order of reference if Mask served her answer “no later than May 2, 2012.” Mask did not serve an answer by May 2, 2012, or thereafter. In November 2013, the plaintiff moved to vacate the July 2010 order of reference and for a new order of reference. Mask cross-moved to dismiss the complaint pursuant to CPLR 3215(c)
on the ground that the plaintiff had abandoned the action. Mask contended that her default had been vacated by the April 2012 stipulation, and, subsequently, the plaintiff had taken no action within one year for entry of judgment upon her second default. By order dated May 7, 2014, the Supreme Court denied the plaintiff's motion and granted Mask's cross motion. By judgment dated November 17, 2014, the Supreme Court dismissed the complaint. By order dated April 13, 2015, the plaintiff's subsequent motion to vacate the order dated May 7, 2014, was denied. The plaintiff appeals.
Stipulations are contracts by which opposing parties chart their own course (see McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714
; Friends of Thayer Lake LLC v. Brown, 126 A.D.3d 22, 25, 1 N.Y.S.3d 504, mod 27 N.Y.3d 1039, 33 N.Y.S.3d 853, 53 N.E.3d 730, 2016 N.Y. Slip Op 03647, 2016 WL 2633031 [2016] ; Pile v. Grant, 41 A.D.3d...
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