U.S. Bank N.A. v Nur

U.S. Bank N.A. v Nur 2022 NY Slip Op 04993 Decided on August 17, 2022 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 August 17, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
DEBORAH A. DOWLING, JJ.
2020-07710
2020-07711
(Index No. 517399/17)

[*1]U.S. Bank N.A., etc., respondent,

v

Mohammad Nur, et al., defendants, Jefferson & Sons, LLC, defendant- appellant; Eleven Forty, Inc., nonparty-appellant.

Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for defendant-appellant and nonparty-appellant.

McCarter & English, LLP, New York, NY (Adam M. Swanson and Jessie D. Bonaros of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., appeal from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated February 6, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Jefferson & Sons, LLC, and for an order of reference, and denied the application of the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Jefferson & Sons, LLC, as abandoned. The second order, insofar as appealed from, granted the same relief to the plaintiff, in effect, denied the same relief to the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., and appointed a referee to compute the amount due to the plaintiff.

ORDERED that on the Court's own motion, the notice of appeal from so much of the first order as denied the application of the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Jefferson & Sons, LLC, as abandoned, and the notice of appeal from so much of the second order as, in effect, denied the same relief to the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., are deemed to be applications for leave to appeal from those portions of the orders, and leave to appeal from those portions of the orders is granted (see CPLR 5701[c]); and it is further,

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The defendant Jefferson & Sons, LLC (hereinafter the defendant), lacked standing to defend the action (see U.S. Bank N.A. v Nur, ___ AD3d ___ [Appellate Division Docket No. 2019-07389; decided herewith]; Moret, LLC v NewBank, 194 AD3d 809). In any event, although the defendant and nonparty Eleven Forty, Inc., opposed the plaintiff's motion for leave to enter a default judgment and for an order of reference by requesting that, pursuant to CPLR 3215(c), the [*2]complaint be dismissed insofar as asserted against the defendant as abandoned, as the Supreme Court determined, the right to seek dismissal of the complaint pursuant to CPLR 3215(c) was waived (see Bank of Am., N.A. v Lichter, 192 AD3d 957; U.S. Rof III Legal Tit. Trust 2015-1 v John, 189 AD3d 1645; Wilmington Sav. Fund Socy., FSB v Chishty, 179 AD3d 1147; US Bank N.A. v Gustavia Home, LLC, 156 AD3d 843).

DILLON, J.P., ROMAN, MALTESE and DOWLING, JJ., concur.

2020-07710 DECISION & ORDER ON MOTION

2020-07711

U.S. Bank N.A., etc., respondent, v Mohammad Nur,

et al., defendants, Jefferson & Sons, LLC, defendant-

appellant; Eleven Forty, Inc., nonparty-appellant.

(Index No. 517399/17)

Appeals from two orders of the Supreme Court, Kings County, both dated February 6, 2020. Motion by the respondent, inter alia, in effect, to dismiss the appeal from a certain portion of the first order on the ground that no appeal lies from that portion of that order as a matter of right, and leave to appeal has not been granted. By decision and order on motion dated February 2, 2022, that branch of the motion which is, in effect, to dismiss the appeal from a certain portion of the first order 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 opposition thereto, and upon the argument of the appeals, it is

ORDERED that the branch of the motion which is, in effect, to dismiss the appeal from a certain portion of the first order is denied.

DILLON, J.P., ROMAN, MALTESE and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court