Bayview Loan Servicing, LLC v. Williams

2017 NY Slip Op 2959, 149 A.D.3d 891, 50 N.Y.S.3d 308

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 2017
• Docket: 2015-00422
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Gerald Williams appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Livote, J.), entered November 18, 2014, which, upon his default in answering the complaint, and upon two orders of the same court (J. Golia, J.), dated May 18, 2012, and February 13, 2013, respectively, inter alia, granted the plaintiff’s motion to confirm a referee’s report and directed the sale of the subject property.

Ordered that the order and judgment entered November 18, 2014, is affirmed, with costs.

In an order dated February 13, 2013, the Supreme Court determined that the defendant Gerald Williams (hereinafter the defendant) waived the defense of lack of standing. By decision and order on motion of this Court dated January 5, 2015, the defendant’s appeal from that order was dismissed for fail ure to perfect. The defendant now seeks to raise the issue of lack of standing on the present appeal from the order and judgment. As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised on an earlier appeal which was dismissed for failure to perfect, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]). We decline to exercise that jurisdiction in this case.

The defendant’s remaining contention is improperly raised for the first time on appeal.

Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.