U.S. Bank N.A. v Williams

U.S. Bank N.A. v Williams 2020 NY Slip Op 07419 Decided on December 9, 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 9, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
ANGELA G. IANNACCI, JJ.
2019-06864
2019-06869
(Index No. 4119/08)

[*1]U.S. Bank National Association, etc., respondent,

v

Simbia A. Williams, et al., defendants, Sunday Ewumi, etc., appellant.

Charles Wallshein, LLC (Licatesi Law Group, LLP, Garden City, NY [Amy J. Zamir and Jeanine A. Oberster], of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Sarah J. Greenberg of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Sunday Ewumi appeals from (1) a decision of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated April 4, 2019, and (2) a judgment of foreclosure and sale of the same court entered April 5, 2019. The judgment of foreclosure and sale, upon the decision, inter alia, confirmed the referee's report and directed the sale of the subject property.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In or about March 2008, the plaintiff commenced this action against, among others, the defendant Sunday Ewumi (hereinafter the defendant) to foreclose a mortgage encumbering certain real property in Nassau County. The plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. In an order dated April 26, 2017, the Supreme Court, among other things, granted the plaintiff's motion for summary judgment on the complaint and an order of reference. In or about November 2018, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. In a decision dated April 4, 2019, the court granted the plaintiff's motion. A judgment of foreclosure and sale was entered on April 5, 2019, inter alia, confirming the referee's report and directing the sale of the property. The defendant appeals.

We reject the contention of the plaintiff that the defendant failed to assemble a sufficient record for this Court to reach an informed decision on the merits and provide meaningful appellate review of the judgment of foreclosure and sale appealed from (see BAC Home Loans Servicing, L.P. v Kirnon, 184 AD3d 547; US Bank, N.A. v Morrison, 160 AD3d 679, 680).

However, we agree with the Supreme Court's determination granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The defendant did not move pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale before the Supreme Court, and first requests such relief on this appeal. Accordingly, the defendant's argument that the judgment of foreclosure and sale should be vacated is not properly before this Court (see generally Houston v Koszer, 178 AD3d 781, 783; JPMorgan Chase Bank, N.A. v Soussis, 165 AD3d 1240, 1241; Paradiso v St. John's Episcopal Hosp., 134 AD3d 1002, 1003).

Accordingly, we affirm the judgment of foreclosure and sale.

CHAMBERS, J.P., COHEN, LASALLE and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court