Lakeview Loan Servicing, LLC v Hurst

Lakeview Loan Servicing, LLC v Hurst 2020 NY Slip Op 07878 Decided on December 23, 2020 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 23, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
HECTOR D. LASALLE
BETSY BARROS
LINDA CHRISTOPHER, JJ.
2017-08892
2017-08894
(Index No. 6157/14)

[*1]Lakeview Loan Servicing, LLC, respondent,

v

Gabriella Hurst, et al., appellants, et al., defendants.

Anthony J. LoPresti, Garden City, NY (Gail M. Blasie of counsel), for appellants.

Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham, NY (Gregory J. Sanda of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Gabriella Hurst and Crystal Gay appeal from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams), entered June 27, 2017, and (2) a judgment of foreclosure and sale of the same court, also entered June 27, 2017. The order, insofar as appealed from, upon an order of the same court dated March 2, 2016, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer, and for an order of reference, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and denied the cross motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them. The judgment of foreclosure and sale, upon the order entered June 27, 2017, inter alia, confirmed the referee's report and directed the sale of the subject premises.

ORDERED that the appeal from the order entered June 27, 2017, is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Gabriella Hurst and Crystal Gay, to strike their answer, and for an order of reference is denied, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, and the orders entered June 27, 2017, and March 2, 2016, are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendants Gabriella Hurst and Crystal Gay.

The appeal from the order entered June 27, 2017, must be dismissed because the right of direct appeal therefrom terminated with the entry of the 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 are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]).

The Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Gabriella Hurst and Crystal Gay, to strike those defendants' answer, and for an order of reference, on the issue of RPAPL 1304, for reasons stated in Citimortgage, Inc. v Erani, 180 AD3d 641, 643-644).

In light of the foregoing determination, we need not address the appellants' remaining contentions.

DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court