Indymac Fed. Bank, FSB v Batista

Indymac Fed. Bank, FSB v Batista 2012 NY Slip Op 08696 Decided on December 19, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
L. PRISCILLA HALL
PLUMMER E. LOTT, JJ.
2012-01351
(Index No. 9014/09)

[*1]Indymac Federal Bank, FSB, appellant,

v

Luisa Batista, respondent, et al., defendants.




Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore,
N.Y. (Timothy Riselvato of counsel), for appellant.
Donna Dougherty, Rego Park, N.Y. (Dianne Woodburn and
Hilary Bauer of counsel), for
respondent.


DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals, by permission, from an order of the Supreme Court, Queens County (Hart, J.), entered December 21, 2011, which, inter alia, sua sponte, declared that the mortgage on the subject property is null and void, and prohibited the plaintiff from seeking a deficiency judgment against the defendant Luisa Batista or from filing an Internal Revenue Service Form 1099-c.

ORDERED that the order is reversed, on the law, with costs.

Contrary to the contention of the defendant Luisa Batista, the record does not reflect that the order appealed from was entered as the result of a settlement, which would require dismissal of the appeal (see CPLR 2104; Matter of Martinez v Martinez, 15 AD3d 663). Since the order appealed from was not the result of a settlement, and the only basis for, inter alia, declaring the subject mortgage null and void was a colloquy between the Supreme Court and Batista, during which the plaintiff was not afforded the opportunity to present evidence and cross-examine Batista, the plaintiff was deprived of its right to due process of law (see Logan v Zimmerman Brush Co., 455 US 422, 429). Accordingly, the order must be reversed.
RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court