Washington Mutual Bank, Fa v. Peak Health Club, Inc.

Decision Date26 February 2008
Docket Number2005-11548.,2006-07933.,2005-07252.,2005-08021.,2006-00063.
Citation853 N.Y.S.2d 112,48 A.D.3d 793,2008 NY Slip Op 01745
PartiesWASHINGTON MUTUAL BANK, FA, Appellant-Respondent, v. PEAK HEALTH CLUB, INC., et al., Respondents-Appellants, MERRILL LYNCH BUSINESS FINANCIAL SERVICES, INC., et al., Defendants-Respondents, et al., Defendants. (Action No. 1.) MERRILL LYNCH BUSINESS FINANCIAL SERVICES, INC., Respondent, v. PEAK HEALTH CLUB, INC., et al., Respondents-Appellants, WASHINGTON MUTUAL BANK, FA, Defendant and Third-Party Plaintiff-Appellant-Respondent, et al., Defendants. A & N PLANNING SERVICES, INC., Third-Party Defendant-Respondent, et al., Third-Party Defendants. (Action No. 2.)
CourtNew York Supreme Court — Appellate Division

Ordered that the notice of appeal of Peak Health Club, Inc., East Coast Athletic Club, Inc., and Arnold Marshel from the decision is deemed to be a premature notice of appeal from the order dated June 30, 2005 (see CPLR 5520 [c]); and it is further,

Ordered that the appeal by Washington Mutual Bank, FA, from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510 [1984]); and it is further,

Ordered that the appeal by Washington Mutual Bank, FA, from so much of the order dated June 13, 2005, as granted that branch of the motion of A & N Planning Services, Inc., which was for summary judgment dismissing the third-party complaint insofar as asserted against it in action No. 2 is dismissed; and it is further,

Ordered that the order dated June 13, 2005 is affirmed insofar as reviewed; and it is further,

Ordered that the appeals from the orders dated June 30, 2005 and December 9, 2005 are dismissed; and it is further,

Ordered that the money judgment is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to A & N Planning Services, Inc., payable by Washington Mutual Bank, FA, one bill of costs is awarded to Merrill Lynch Business Financial Services, Inc., payable by Washington Mutual Bank, FA, Peak Health Club, Inc., East Coast Athletic Club, Inc., and Arnold Marshel, and one bill of costs is awarded to Washington Mutual Bank, FA, payable by Arnold Marshel.

The appeal by Washington Mutual Bank, FA, from so much of the order dated June 13, 2005 as granted that branch of the motion of A & N Planning Services, Inc., which was for summary judgment dismissing the third-party complaint insofar as asserted against it in action No. 2, and the appeal and cross appeal from the order dated June 30, 2005, must be dismissed, because the right of direct appeal and cross appeal therefrom terminated with the entry of an order and judgment of foreclosure and sale entered August 7, 2006 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on those appeals and cross appeal are brought up for review and have been considered on the appeal and cross appeal from that order and judgment of foreclosure and sale (see Merrill Lynch Bus. Fin. Servs., Inc. v Peak Health Club, Inc., 48 AD3d 763 [2008] [decided herewith]).

The appeal from so much of the order dated December 9, 2005 as granted that branch of the motion of Washington Mutual Bank, FA, which was for summary judgment on the issue of liability on its causes of action against Arnold Marshel to recover under a promissory note and guaranty must be dismissed because the right of direct appeal therefrom terminated with the entry of the money judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that provision of the order are brought up for review and have been considered on the appeal from the money judgment (see CPLR 5501 [a] [1]).

The instant appeals raise, among other issues, the priority of mortgages held by two different mortgagees on the same parcel of land (hereinafter the premises). One of those mortgages is held by Washington Mutual Bank, FA (hereinafter WaMu). The other is held by Merrill Lynch Business Financial Services, Inc. (hereinafter Merrill...

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    ...knowledge of the prior mortgage’ ” (Carrion v. 162 Pulaski, LLC, 117 A.D.3d 767, 768–769, 986 N.Y.S.2d 164 [2014], quoting Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793, 797, 853 N.Y.S.2d 112 [2008], lv. dismissed 10 N.Y.3d 911, 861 N.Y.S.2d 271, 891 N.E.2d 306 [2008] ; ......
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    ...the Emigrant mortgage (see 139 Lefferts, LLC v. Melendez, 156 A.D.3d 666, 667, 67 N.Y.S.3d 240 ; Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793, 797–798, 853 N.Y.S.2d 112 ). However, viewing the evidence in the light most favorable to the plaintiff and resolving all reaso......
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    ...mortgage’ ” ( 2 Lisa Ct. Corp. v. Licalzi, 89 A.D.3d 721, 722, 933 N.Y.S.2d 50, quoting Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793, 797, 853 N.Y.S.2d 112). “A mortgagee's interest in the property is protected unless it has notice of a previous fraud affecting the titl......
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    ...The Second Department has also required a showing that the mortgage was valid. Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793, 853 N.Y.S.2d 112 (2nd Dept.2008). In this case, Defendant Sameeh Alderazi borrowed $408,000.00 from "America's Wholesale Lender" on January 25, 2......
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