KEYBANK NATIONAL ASSOCIATION PLAINTIFF RESPONDENT v. APPEAL NO (2017)

Supreme Court, Appellate Division, Fourth Department.

KEYBANK NATIONAL ASSOCIATION, PLAINTIFF–RESPONDENT, v. PHILIP SIMAO, DEFENDANT–APPELLANT, ET AL., DEFENDANTS. (APPEAL NO. 1.)

CA 17–00085

Decided: November 17, 2017

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.

MCMAHON, KUBLICK & SMITH, P.C., SYRACUSE (JAN S. KUBLICK OF COUNSEL), FOR DEFENDANT–APPELLANT. FEIN, SUCH & CRANE, LLP, ROCHESTER, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 2, Philip Simao (defendant) purports to appeal from a decision of Supreme Court granting plaintiff's motion for a judgment of foreclosure and sale. Inasmuch as no appeal lies from a decision, that appeal is dismissed (see CPLR 5512[a]; Montanaro v. Weichert, 145 AD3d 1563, 1563 [4th Dept 2016] ). In appeal No. 1, defendant appeals from the resulting judgment of foreclosure and sale. Defendant's sole contention on appeal is that the court should have denied plaintiff's motion because the referee appointed to ascertain and compute the amount due to plaintiff did not conduct a fact-finding hearing or provide notice of such a hearing to defendant. That contention, however, is improperly raised for the first time on appeal (see Biro v. Keen, 153 AD3d 1571, 1572 [4th Dept 2017]; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985 [4th Dept 1994] ).

Mark W. Bennett

Clerk of the Court

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