DEUTSCHE BANK NATIONAL TRUST COMPANY v. BONILLA (2024)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Joaquin Bonilla, Jose DeJesus, and Francisco Bernal separately appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), entered October 7, 2020.  The order, insofar as appealed from by the defendant Joaquin Bonilla, denied that branch of his cross-motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against him.  The appeals by the defendants Jose DeJesus and Francisco Bernal were deemed dismissed pursuant to 22 NYCRR 1250.10(a).

Motion by the plaintiff to dismiss the appeals on the ground that the dismissal of prior appeals for failure to timely perfect precludes consideration of the issues to be raised on the appeals pursuant to Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575, and for an award of costs.  By decision and order on motion of this Court dated May 14, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal by the defendant Joaquin Bonilla, it is

ORDERED that the branch of the motion which is to dismiss the appeal by the defendant Joaquin Bonilla on the ground that the dismissal of a prior appeal from an order dated June 25, 2018, for failure to timely perfect precludes consideration of the issues to be raised on the appeal pursuant to Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 is granted, and the motion is otherwise denied;  and it is further,

ORDERED that the appeal by the defendant Joaquin Bonilla is dismissed, with costs.

For the reasons stated in our decision and order on a related appeal (see Deutsche Bank Natl. Trust Co. v. Bonilla, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 3882250 [Appellate Division Docket No. 2020–00309;  decided herewith]), we decline to exercise our discretion to review the contentions of the defendant Joaquin Bonilla, which could have been raised on his prior appeal from an order dated June 25, 2018, which appeal was dismissed for failure to timely perfect.

BRATHWAITE NELSON, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.