BAC HOME LOANS SERVICING LP FORMERLY KNOWN AS COUNTRYWIDE HOME LOANS SERVICING LP PLAINTIFF RESPONDENT v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE ET AL DEFENDANTS (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action to foreclose on a mortgage that was secured by property owned by Alexander J. McCombie, III (defendant).  Defendant appeals from an order that, inter alia, granted plaintiff's motion seeking summary judgment on the relief sought in the complaint and dismissal of the counterclaims.

We note at the outset that the order was subsumed in a judgment of foreclosure and sale that was subsequently entered.  While the appeal properly lies from the judgment, we exercise our discretion to treat the notice of appeal as valid and deem the appeal to be from the judgment (see CPLR 5520[c];  Kovalsky–Carr Elec. Supply Co., Inc. v Hartford Cas. Ins. Co., 130 AD3d 1534, 1534).  We further note that, on appeal, defendant challenges the order only insofar as it granted that part of plaintiff's motion seeking summary judgment dismissing the counterclaims.  We therefore deem abandoned any contention by defendant with respect to the order insofar as it granted the relief sought in the complaint (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984).

Contrary to defendant's contention, we conclude that Supreme Court properly granted that part of plaintiff's motion for summary judgment dismissing the first counterclaim, which alleges that plaintiff was negligent in its dealings with defendant after he defaulted.  The relationship between the parties is a contractual one between plaintiff as mortgagee and defendant as mortgagor (see Beckford v. Empire Mut. Ins. Group, 135 A.D.2d 228, 233), and plaintiff owed defendant no legal duty independent of the mortgage (see Niagara Foods, Inc. v Ferguson Elec. Serv. Co., Inc., 111 AD3d 1374, 1376, lv denied 22 NY3d 864).  Plaintiff was under no obligation under the mortgage to grant defendant's requests for a short sale or a deed in lieu of foreclosure after defendant defaulted on his loan payments (see Home Sav. of Am. v. Isaacson, 240 A.D.2d 633, 633;  see also Wells Fargo Bank, N.A. v VanDyke, 101 AD3d 638, 638).

The court also properly granted plaintiff's motion with respect to the second counterclaim, which seeks punitive damages arising from the parties' respective financial situations following the financial crisis of 2007–2008.  Defendant cannot recover punitive damages because he fails “to assert an underlying [counterclaim] upon which a demand for punitive damages can be grounded” (Roconova v Equitable Life Assur.  Socy. of U.S., 83 N.Y.2d 603, 616).  Moreover, defendant cannot assert a counterclaim against plaintiff under the statute that created the Troubled Asset Relief Program ( [TARP] 12 USC § 5211 et seq.), inasmuch as he has no private right of action against plaintiff under TARP (see Ruotolo v. Fannie Mae, 933 F Supp 2d 512, 523 [SDNY], appeal dismissed _ F3d _ [June 5, 2013] ).

Frances E. Cafarell

Clerk of the Court