AMRUSI v. SECOND CHOICE LLC (2021)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Second Choice, LLC, appeals from (1) an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated September 6, 2017, (2) an order of the same court dated July 9, 2018, and (3) an order and judgment of foreclosure and sale (one paper) of the same court dated November 29, 2018.  The order dated September 6, 2017, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike its answer, and for an order of reference, and denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.  The order dated July 9, 2018, denied the motion of the defendant Second Choice, LLC, for leave to renew and reargue its opposition to the plaintiff's prior motion, inter alia, for summary judgment on the complaint insofar as asserted against it, and its motion for summary judgment dismissing the complaint insofar as asserted against it.  The order and judgment of foreclosure and sale, upon the orders dated September 6, 2017, and July 9, 2018, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property.

By order to show cause dated October 18, 2019, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals from the orders on the ground that the right of direct appeal therefrom terminated upon entry in the above-entitled action of the order and judgment of foreclosure and sale.  By decision and order on motion of this Court dated December 18, 2019, the Court's motion to dismiss the appeals was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the order to show cause and no papers having been filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the Court's motion to dismiss the appeals from the orders is granted;  and it is further,

ORDERED that the appeals from the orders dated September 6, 2017, and July 9, 2018, are dismissed;  and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed;  and it is further,

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

The appeals from the orders dated September 6, 2017, and July 9, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in this action (see Matter of Aho, 39 N.Y.2d 241, 248, 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];  Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

The Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Second Choice, LLC (hereinafter the defendant), to strike its answer, and for an order of reference.  “Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]).  Once the plaintiff meets this prima facie burden, “[t]he burden then shifts to the defendant to demonstrate ‘the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff’ ” (U.S. Bank Natl. Assn. TR U/S 6/01/98 [Home Equity Loan Trust 1998–2] v. Alvarez, 49 A.D.3d 711, 711, 854 N.Y.S.2d 171, quoting Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345;  see Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548).

Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting the mortgage and the affidavit of the plaintiff attesting to the defendant's default in the repayment of the mortgage loan obligation (see Bank of Am., N.A. v. Cord, 168 A.D.3d 896, 898–899, 92 N.Y.S.3d 185;  Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 793, 946 N.Y.S.2d 611).

In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was a bona fide encumbrancer for value (see Real Property Law § 266;  Anderson v. Blood, 152 N.Y. 285, 293, 46 N.E. 493;  Williams v. Mentore, 115 A.D.3d 664, 664, 981 N.Y.S.2d 763).  The defendant's contentions in this regard were unsubstantiated, speculative, and insufficient to meet its burden in opposition (see M & T Bank v. DelVecchio, 162 A.D.3d 654, 655, 78 N.Y.S.3d 393).

For similar reasons, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties' remaining contentions are either not properly before this Court or without merit.

RIVERA, J.P., MILLER, GENOVESI and FORD, JJ., concur.