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

• Decision Date: 26 February 2008
• Docket Number: 2005-11548.,2006-07933.,2005-07252.,2005-08021.,2006-00063.
• Citation: 853 N.Y.S.2d 112,48 A.D.3d 793,2008 NY Slip Op 01745
• Parties: WASHINGTON 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.)
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 793

853 N.Y.S.2d 112

2008 NY Slip Op 01745

WASHINGTON 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.)

2005-07252.

2005-08021.

2005-11548.

2006-00063.

2006-07933.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 26, 2008.

In two related actions, inter alia, to foreclose mortgages, Washington Mutual Bank, FA, appeals (1) from a decision of the Supreme Court, Nassau County (Warshawsky, J.), dated June 13, 2005, (2) from an order of the same court dated June 13, 2005, which granted the motion of A & N Planning Services, Inc., for summary judgment dismissing the complaint in action No. 1 and the third-party complaint insofar as asserted against it in action No. 2, and denied its cross motion for summary judgment declaring that its mortgage is superior in priority to the mortgage held by A & N Planning Services, Inc., and (3), as limited by its brief, from so much of an order of the same court dated June 30, 2005, as, upon the decision, granted that branch of the motion of Merrill Lynch Business Financial Services, Inc., which was for summary judgment on its cause of action to foreclose its mortgage, and denied its motion for summary judgment declaring that its mortgage is superior in priority to the mortgage held by Merrill Lynch Business Financial Services Inc.; and Peak Health Club, Inc., East Coast Athletic Club, Inc., and Arnold Marshel cross-appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of Merrill Lynch Business Financial Services, Inc., which was for summary judgment on its cause of action to foreclose its mortgage, and denied their motion for summary judgment declaring that the mortgage held by Washington Mutual Bank, FA, is superior in priority to the mortgage held by Merrill Lynch Business Financial Services, Inc., and Arnold Marshel appeals, as limited by his brief, (1) from so much of an order of the same court 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 him to recover under a promissory note and guaranty, and (2) from so much of a money judgment of the same court entered March 29, 2006, as, upon the order dated December 9, 2005, is in favor of Washington Mutual Bank, FA, and against him in the principal sum of $3,750,142.45. The notice of appeal

by Arnold Marshel from the order dated December 9, 2005, is deemed to also be a notice of appeal from the money judgment dated March 29, 2006 (see CPLR 5501 [c]).

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...