U.S. Bank Nat'l Ass'n v. Westchester Cnty. Pub. Adm'r ex rel. Hack
| Decision Date | 27 October 2021 |
| Docket Number | 2018–05731, 2018–05732,Index No. 20222/08 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. WESTCHESTER COUNTY PUBLIC ADMINISTRATOR, ON BEHALF OF Khartoon HACK, et al., defendants, Mohamed Hack, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
198 A.D.3d 1001
156 N.Y.S.3d 375
U.S. BANK NATIONAL ASSOCIATION, etc., respondent,
v.
WESTCHESTER COUNTY PUBLIC ADMINISTRATOR, ON BEHALF OF Khartoon HACK, et al., defendants,
Mohamed Hack, et al., appellants.
2018–05731, 2018–05732
Index No. 20222/08
Supreme Court, Appellate Division, Second Department, New York.
Argued—September 14, 2021
October 27, 2021
Kenneth J. Glassman, New York, NY, for appellants.
Gross Polowy (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and James Faller ], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack appeal from (1) an order of the Supreme Court, Westchester County (Joan
B. Lefkowitz, J.), entered March 12, 2018, and (2) an order and judgment of foreclosure and sale (one paper) of the same court, also entered March 12, 2018. The order, insofar as appealed from, denied those defendants’ motion (a) pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court dated March 12, 2015, insofar as it is against them, issued upon their failure to appear or answer the complaint, (b) pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and (c) pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The order and judgment of foreclosure and sale entered March 12, 2018, insofar as appealed from, is in favor of the plaintiff and against those defendants, directing the sale of the subject property.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale entered March 12, 2018, is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned is granted, the judgment of foreclosure and sale dated March 12, 2015, insofar as it is against those defendants is vacated, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale entered March 12, 2018 (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 entered March 12, 2018 (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
In September 2008, the plaintiff commenced this action against, among others, Mohamed Hack, Patricia Ann Hack, Tony Hack (hereinafter collectively the defendants), and Khartoon Hack (hereinafter the decedent), who were members of Patricia's family and resided with her at the mortgaged premises. It is not disputed that the defendants defaulted in appearing or answering the complaint, and as a consequence, the plaintiff, on March 12, 2015, obtained a judgment of foreclosure and sale against them. Sale of the property, however,
was delayed for a variety of reasons, including the discovery that the decedent had died the preceding year.
In July 2017, the defendants moved (1) pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale insofar as it is against them, issued upon their failure to appear or answer the complaint, (2) pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and (3) pursuant to CPLR 3215(c) to dismiss
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