Buoninfante v. Hoffman

54 A.D.2d 704, 387 N.Y.S.2d 555, 1976 N.Y. App. Div. LEXIS 14282

Opinion

In an action to foreclose a mortgage on real property, defendants appeal from (1) a judgment of the Supreme Court, Westchester County, dated May 17, 1976, which, after a nonjury trial, inter alia, (a) ordered that the premises be sold and (b) dismissed the counterclaim of defendants Hoffman and (2) an order of the same court, dated April 26, 1976, which denied their motion to relieve them from the effect of the judgment pursuant to CPLR 5015 (subd [a], par 3). Defendants purport to appeal from an "order” of the same court, dated March 4, 1976, which "order” is apparently a decision. Appeal from the decision dismissed. No appeal lies from a decision. Judgment and order affirmed. Plaintiff is awarded one bill of costs to cover all appeals. In our opinion, the determinations of Special Term were supported by the evidence (see Buoninfante v Hoffman, 48 AD2d 678). Cohalan, Acting P. J., Shapiro and Titone, JJ., concur; Margett and Damiani, JJ., concur as to the dismissal of the appeal from the decision, but otherwise dissent and vote to reverse the judgment, dismiss the complaint, grant judgment in favor of defendants Hoffman on their counterclaim, remand the action to Special Term for an assessment of damages, and dismiss the appeal from the order as academic, with the following memorandum: In our opinion, defendants proved their defense of usury to the extent required by law, and were, therefore, entitled to judgment (see Buoninfante v Hoffman, 48 AD2d 678).