Summary
This New York Appellate Division decision reviews an appeal from lower court orders granting a plaintiff's motion for summary judgment and directing a judicial foreclosure and sale of mortgaged property. The appellate court affirmed the foreclosure and sale order, finding that the plaintiff submitted sufficient evidence of loan default and that the notice of default substantially complied with the mortgage agreement. The court also determined that the referee's report was substantially supported by the record and dismissed the separate appeal as moot due to the entry of the final judgment.
Topics
Practice areas
Questions Presented
- Whether the appeal from the order dated June 16, 2023, is proper after the entry of the judgment of foreclosure and sale.
- Whether the plaintiff satisfied the statutory requirements of notice of default and proof of default to support summary judgment in a foreclosure action.
Holdings
- The appeal from the order is dismissed because the right of direct appeal terminated with the entry of the order and judgment of foreclosure and sale; the order and judgment of foreclosure and sale are affirmed.
- The plaintiff provided sufficient notice of default and evidence of default; therefore summary judgment was proper and the foreclosure judgment is affirmed.
Key quotations
“The appeal from the order dated June 16, 2023, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248).”
“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default (see Lakeview Loan Servicing, LLC v Swanson, 231 AD3d 801, 802; HSBC Mtge. Corp. USA v Tehrani, 229 AD3d 772, 777; Zarabi v Movahedian, 136 AD3d 895, 895).”
Factual background
The plaintiff sought to foreclose a mortgage on real property in Brooklyn. The defendants contested that the plaintiff failed to provide proper notice of default and sufficient proof of default.
Procedural history
The plaintiff obtained summary judgment, confirmation of a referee's report, and a judgment of foreclosure and sale in the Supreme Court, Kings County. The defendants appealed the order and the judgment. The Appellate Division considered both appeals together.