Flagstar Bank, FSB v Stewart

Flagstar Bank, FSB v Stewart 2020 NY Slip Op 05008 Decided on September 17, 2020 Appellate Division, Third 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 and Entered: September 17, 2020
529153

[*1]Flagstar Bank, FSB, Respondent,

v

Patricia Stewart, Also Known as Patricia A. Stewart, et al., Appellants.

Calendar Date: August 20, 2020
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellants.

Gross Polowy, LLC, Williamsville (Douglas C. Weinert of counsel), for respondent.

Aarons, J.

Appeal from an order of the Supreme Court (Fisher, J.), entered February 8, 2019 in Greene County, which granted plaintiff's motion to vacate a prior order.

Plaintiff commenced this mortgage foreclosure action after defendants failed to make required payments due under the loan. Plaintiff moved for a judgment of foreclosure and sale, but Supreme Court, in a June 2017 order, denied the motion without prejudice due to an incorrect amount being reflected in the affidavit of amount due. Plaintiff was also instructed to re-move for a judgment of foreclosure and sale within 120 days of the June 2017 order. Plaintiff failed to do so, and the court sua sponte dismissed the complaint without prejudice in a November 2017 order. Plaintiff thereafter moved to vacate the November 2017 order. In a February 2019 order, the court granted plaintiff's motion. Defendants appeal.

This Court has been advised that a judgment of foreclosure and sale, of which we take judicial notice (see U.S. Bank Natl. Assn. v Reyes, 174 AD3d 423, 423 [2019]), was entered in November 2019. In view of this, defendants' appeal from the February 2019 order must be dismissed given that it is a nonfinal order and the right to appeal from it terminated upon the entry of the November 2019 judgment (see US Bank Trust, N.A. v Lynch, 168 AD3d 1242, 1243 [2019]; Augusta v Kwortnik, 161 AD3d 1401, 1403 [2018]). Although an appeal from the November 2019 judgment would bring the February 2019 order up for review (see CPLR 5501 [a] [1]; US Bank Trust, N.A. v Lynch, 168 AD3d at 1243; Artibee v State of New York, 165 AD3d 1575, 1576 [2018]), there is no notice of appeal from that judgment before us. Defendants' contention that the November 2019 judgment is a nullity has been considered and is without merit.

Garry, P.J., Lynch, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the appeal is dismissed, with costs.