LASALLE BANK v. EVELYN (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John Evelyn appeals from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated October 28, 2022, and (2) an order of the same court dated November 4, 2022.  The order dated October 28, 2022, insofar as appealed from, in effect, denied that defendant's cross-motion pursuant to CPLR 3215(c) to dismiss the amended complaint insofar as asserted against him as abandoned.  The order dated November 4, 2022, granted that branch of the plaintiff's motion which was pursuant to CPLR 1003 to “drop” the defendant John Evelyn as a named defendant and to amend the caption accordingly.

Motion by the plaintiff, inter alia, 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 dated October 7, 2024, that branch of 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 no papers having been filed in opposition or in relation thereto, and upon the argument of the appeals, it is

ORDERED that the branch of the motion which is to dismiss the appeals from the orders on the ground that the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale is granted;  and it is further,

ORDERED that the appeals are dismissed, without costs or disbursements.

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 that are brought up for review on the appeal from the order and judgment of foreclosure and sale have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1];  U.S. Bank, N.A. v. New York City Transit Adjudication Bur., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2026 WL 1084833 [decided herewith] ).

CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and VENTURA, JJ., concur.