Columbia Federal Savings Bank v. Martino

189 A.D.2d 850, 592 N.Y.S.2d 972, 1993 N.Y. App. Div. LEXIS 622

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1993
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Richard C. Martino appeals from (1) an order of the Supreme Court, Nassau County (Goldstein, J.), entered October 29, 1990, which granted the plaintiff’s motion for summary judgment against him and a protective order striking his demand for a deposition, (2) so much of an order of the same court (Goldstein, J.), dated January 31, 1991, as granted the plaintiff’s motion for leave to enter a judgment of foreclosure and sale and confirmed the report of a Referee, and (3) a judgment of foreclosure and sale of said court, entered February 7, 1991, thereon.

Ordered that the appeals from the orders are dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

The defendant Martino has failed to offer any admissible evidence in support of his defense of misconduct or fraud on the part of the plaintiff. Moreover, he has failed to demonstrate how the plaintiff’s alleged misconduct prejudiced him, since he contracted to purchase the subject property long after the alleged diversion by the builder of most of the building loan proceeds. Therefore, summary judgment was properly granted to the plaintiff. Mangano, P. J., Rosenblatt, Ritter and Santucci, JJ., concur.