BANK NATIONAL ASSOCIATION v. SMITH (2014)

U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Donnette SMITH, respondent, et al., defendants.

Decided: December 17, 2014

CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, ROBERT J. MILLER, BETSY BARROS, JJ.

Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Nicole E. Schiavo, Chava Brandriss, and Sean Marotta of counsel), and Gross Polowy Orlans, LLC, Amherst, N.Y. (Dennis Jose of counsel), for appellant (one brief filed). Jeanette Zelhof, New York, N.Y. (Aaron Jacobs–Smith and Chantal Hernandez of counsel), for respondent.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated October 5, 2012, as, after settlement conferences pursuant to CPLR 3408, directed the continuation of a toll of the accrual of interest on the subject mortgage loan “pending further order of [the court] or the parties reaching an agreement on the terms of a modification.”

ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2] ), and we decline to grant leave to appeal since the appeal is academic in light of our determination of a companion appeal (see U.S. Bank National Association v. Smith, ––– AD3d –––– [Appellate Division Docket No. 2013–08653; decided herewith] ).

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