FLAGSTAR BANK FSB v. PATRICIA STEWART PATRICIA STEWART (2020)

MEMORANDUM AND ORDER

Calendar Date:  August 20, 2020

Appeal from an order of the Supreme Court (Fisher, J.), entered February 8, 2019 in Greene County, which granted plaintiff's motion to vacate a prior order.

Plaintiff commenced this mortgage foreclosure action after defendants failed to make required payments due under the loan.  Plaintiff moved for a judgment of foreclosure and sale, but Supreme Court, in a June 2017 order, denied the motion without prejudice due to an incorrect amount being reflected in the affidavit of amount due.  Plaintiff was also instructed to re-move for a judgment of foreclosure and sale within 120 days of the June 2017 order.  Plaintiff failed to do so, and the court sua sponte dismissed the complaint without prejudice in a November 2017 order.  Plaintiff thereafter moved to vacate the November 2017 order.  In a February 2019 order, the court granted plaintiff's motion.  Defendants appeal.

This Court has been advised that a judgment of foreclosure and sale, of which we take judicial notice (see U.S. Bank Natl. Assn. v. Reyes, 174 AD3d 423, 423 [2019] ), was entered in November 2019.  In view of this, defendants' appeal from the February 2019 order must be dismissed given that it is a nonfinal order and the right to appeal from it terminated upon the entry of the November 2019 judgment (see U.S. Bank Trust, N.A. v. Lynch, 168 AD3d 1242, 1243 [2019];  Augusta v. Kwortnik, 161 AD3d 1401, 1403 [2018] ).  Although an appeal from the November 2019 judgment would bring the February 2019 order up for review (see CPLR 5501[a][1];  US Bank Trust, N.A. v. Lynch, 168 AD3d at 1243;  Artibee v. State of New York, 165 AD3d 1575, 1576 [2018] ), there is no notice of appeal from that judgment before us.  Defendants' contention that the November 2019 judgment is a nullity has been considered and is without merit.

Garry, P.J., Lynch, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the appeal is dismissed, with costs.

Aarons, J.