BANK OF NEW YORK MELLON v. DELONEY (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Roger DeLoney appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Larry D. Martin, J.), dated February 6, 2024.  The order and judgment of foreclosure and sale, upon an order of the same court dated February 8, 2023, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Roger DeLoney and for an order of reference, an order of the same court dated July 12, 2023, denying that defendant's motion, among other things, pursuant to CPLR 5015(a) to vacate the order dated February 8, 2023, and to dismiss the complaint insofar as asserted against him, and an order of the same court dated February 6, 2024, granting the plaintiff's motion, inter alia, for a judgment of foreclosure and sale and denying that defendant's cross-motion, among other things, pursuant to CPLR 5015(a) to vacate the order dated February 8, 2023, and to dismiss the complaint insofar as asserted against him, inter alia, directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

On July 30, 2013, the plaintiff commenced this action against, among others, the defendant Roger DeLoney (hereinafter the defendant) to foreclose a mortgage on real property located in Brooklyn.  The defendant interposed an answer to the complaint.  By deed dated November 22, 2016, the defendant conveyed the property to Oscar Levitus, LLC (hereinafter the LLC).

Meanwhile, in an order dated September 27, 2016, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.  Thereafter, the court issued an amended order and judgment of foreclosure and sale dated February 13, 2018, among other things, directing the sale of the property.  By decision and order dated August 11, 2021, this Court reversed the amended order and judgment of foreclosure and sale insofar as appealed from and denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference (see Bank of N.Y. Mellon v. DeLoney, 197 AD3d 548).

In December 2022, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference (hereinafter the December 2022 summary judgment motion).  In an order dated February 8, 2023, the Supreme Court, among other things, granted those branches of the plaintiff's December 2022 summary judgment motion and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

The defendant then moved, inter alia, pursuant to CPLR 5015(a) to vacate the order dated February 8, 2023, and to dismiss the complaint insofar as asserted against him.  In an order dated July 12, 2023, the Supreme Court denied the defendant's motion.

The plaintiff thereafter moved to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant cross-moved, among other things, pursuant to CPLR 5015(a) to vacate the order dated February 8, 2023, and to dismiss the complaint insofar as asserted against him. In an order dated February 6, 2024, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion.  In an order and judgment of foreclosure and sale, also dated February 6, 2024, the court, inter alia, directed the sale of the subject property.  The defendant appeals.

Contrary to the plaintiff's contention, the defendant did not lack standing to defend the action.  “A mortgagor who has made an absolute conveyance of all his or her interest in the mortgaged premises is not a necessary party to a foreclosure action unless a deficiency judgment is sought” (Citimortgage, Inc. v. Warsi, 212 AD3d 592, 594;  see MTGLQ Invs., L.P. v. Pettinato, 241 AD3d 544, 545).  Here, the defendant conveyed his interest in the premises to the LLC after the commencement of the action.  However, in the complaint the plaintiff sought a deficiency judgment against the defendant and there is no indication that the plaintiff ever waived that claim.  Indeed, the order and judgment of foreclosure and sale provides that, after the sale of the property, the plaintiff may seek a deficiency judgment against the defendant.  Under those circumstances, the defendant did not lack standing to defend the action (see HSBC Bank USA, N.A. v. Sanderson, 231 AD3d 1126, 1127–1128).

However, contrary to the defendant's contention, this Court's decision and order dated August 11, 2021, reversing the amended judgment of foreclosure and sale dated February 13, 2018, insofar as appealed from, did not direct dismissal of this foreclosure action or otherwise preclude the Supreme Court from deciding further motions in the case, including the plaintiff's December 2022 summary judgment motion (see id.).  The defendant's remaining challenges to the order dated February 8, 2023, granting the plaintiff's December 2022 summary judgment motion, are improperly raised for the first time on appeal (see Real Time Resolutions, Inc. v Chandler, 239 AD3d 905, 907;  State of N.Y. Mtge. Agency v. Costanza, 215 AD3d 990, 991;  Nationstar Mtge., LLC v. Gayle, 191 AD3d 1003).

The Supreme Court properly denied those branches of the defendant's motions which were pursuant to CPLR 5015(a) to vacate the order dated February 8, 2023, and to dismiss the complaint insofar as asserted against him, as he failed to demonstrate any basis for granting such relief (see CPLR 5015[a];  Deutsche Bank Natl. Trust Co. v Maxwell, 244 AD3d 814, 816).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.