Caerus Terra Props., LLC v Sulton

Caerus Terra Props., LLC v Sulton 2019 NY Slip Op 08817 Decided on December 11, 2019 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 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON, JJ.
2017-00855
2017-07551
(Index No. 2842/16)

[*1]Caerus Terra Properties, LLC, respondent,

v

Andre Sulton, appellant, et al., defendants.

Biolsi Law Group, P.C., New York, NY (Juan Paolo F. Dizon and Steven Alexander Biolsi of counsel), for appellant.

Michael T. Sucher, Brooklyn, NY (Andrew M. Shabasson of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Andre Sulton appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated January 10, 2017, and an order of reference of the same court dated March 8, 2017. The order dated January 10, 2017, denied the motion of the defendant Andre Sulton to vacate an order of the same court dated May 11, 2016, and granted the plaintiff's cross motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. The order of reference dated March 8, 2017, inter alia, referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the appeals are dismissed, without costs and disbursements.

The appeal from the order dated January 10, 2017, must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order dated January 10, 2017, are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (Caerus Terra Properties, LLC v Sulton, _____ AD3d _____, [Appellate Division Docket No. 2018-09614; decided herewith]; see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).

The appeal from the order of reference dated March 8, 2017, must be dismissed as the order is not appealable as of right, and leave to appeal has not been granted (see Bohensky v 3912 NU Rainspring, LLC, 148 AD3d 666; JPMorgan Chase Bank, N. A. v Mantle, 134 AD3d 903).

SCHEINKMAN, P.J., RIVERA, CHAMBERS and BRATHWAITE NELSON, JJ., concur.

2017-00855 DECISION & ORDER ON MOTION

2017-07551

Caerus Terra Properties, LLC, respondent,

v Andre Sulton, appellant, et al., defendants.

(Index No. 2842/16)

Motion by the respondent to dismiss appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated January 10, 2017, and an order of reference of the same court dated March 8, 2017, on the ground that the right of direct appeal therefrom terminated with the entry of judgment in this action. By decision and order on motion of this Court dated May 2, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in partial opposition thereto, and upon the argument of the appeals, it is

ORDERED that the motion is denied as academic in light of our determination on the appeals.

SCHEINKMAN, P.J., RIVERA, CHAMBERS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court