HSBC Bank USA, N.A. v Estick

HSBC Bank USA, N.A. v Estick 2019 NY Slip Op 08828 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
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
2017-00154
(Index No. 7800/13)

[*1]HSBC Bank USA, N.A., etc., respondent,

v

Carol Estick, appellant, et al., defendants.

Valerie A. Hawkins, Hempstead, NY, for appellant.

Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Carol Estick appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 10, 2016. The order denied that defendant's motion pursuant to CPLR 5015(a)(1), in effect, to vacate her default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her and for an order of reference, and to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against, among others, Carol Estick (hereinafter the defendant) to foreclose a consolidated mortgage encumbering certain property in Hempstead. The defendant interposed an answer generally denying the allegations in the complaint and asserting various affirmative defenses, including lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant opposed the plaintiff's motion in an affirmation dated May 21, 2014. By order entered September 24, 2014, the Supreme Court granted the plaintiff's motion. On November 20, 2015, the court entered an order and judgment of foreclosure and sale, among other things, directing the foreclosure sale of the subject property. Thereafter, the defendant, contending that she had defaulted in responding to the plaintiff's motion, moved pursuant to CPLR 5015(a)(1), in effect, to vacate the alleged default and, upon vacatur, for summary judgment dismissing the complaint for lack of standing. The court denied the defendant's motion, and the defendant appeals.

The defendant contends that the Supreme Court should have granted her motion pursuant to CPLR 5015(a)(1), inter alia, to vacate her default in opposing the plaintiff's motion for summary judgment. However, the relief requested pursuant to CPLR 5015(a)(1) was unavailable since the defendant did not, in fact, default in opposing the plaintiff's motion.

Since the defendant did not appeal the judgment of foreclosure and sale or the order awarding the plaintiff summary judgment, the defendant's remaining contentions are not properly before this Court.

DILLON, J.P., DUFFY, BARROS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court