WELLS FARGO BANK v. SALKO (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants David Salko and Nilsa Salko appeal from two orders of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), both dated April 13, 2022.  The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants David Salko and Nilsa Salko, to strike those defendants’ answer and affirmative defenses, and for an order of reference and denied those branches of those defendants’ cross-motion which were to deem a notice dated March 13, 2017, purporting to decelerate a previous acceleration of the mortgage debt, invalid and of no force and effect and to dismiss the complaint insofar as asserted against them as time-barred.  The second order, insofar as appealed from, granted the same relief to the plaintiff, denied the same relief to those defendants, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

Motion by the plaintiff to dismiss the appeals from the orders on the ground that the right of direct appeal therefrom terminated with the entry of an order and judgment of foreclosure and sale in the action.  By decision and order on motion of this Court dated May 31, 2024, 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 argument of the appeals, it is

ORDERED that the motion is granted;  and it is further,

ORDERED that the appeals are dismissed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeals from the orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1];  Wells Fargo Bank, N.A. v. Salko, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 2405915 [Appellate Division Docket No. 2024–02927;  decided herewith] ).

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and MCCORMACK, JJ., concur.