Downey Sav. & Loan Assn., F.A. v. Yacoob

159 N.Y.S.3d 688, 202 A.D.3d 921, 2022 NY Slip Op 01005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2022
• Docket: Index No. 2320/08
• Status: Published

Opinion

Downey Sav. & Loan Assn., F.A. v Yacoob (2022 NY Slip Op 01005)

Downey Sav. & Loan Assn., F.A. v Yacoob

2022 NY Slip Op 01005

Decided on February 16, 2022

Appellate Division, Second 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 on February 16, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
WILLIAM G. FORD
DEBORAH A. DOWLING, JJ.

2019-09172
(Index No. 2320/08)

[*1]Downey Savings and Loan Association, F.A., appellant,

v

Lloyd Yacoob, et al., respondents, et al., defendants.

J. Robbin Law, PLLC, New York, NY (Jonathan M. Robbin of counsel), for appellant.

Law Office of Samuel Katz, PLLC, Brooklyn, NY (Joseph J. Schwartz of counsel), for respondents.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated May 21, 2015. The order denied the plaintiff's motion to vacate a conditional order of dismissal of the same court (Gloria Dabiri, J.), dated February 11, 2014, and for a judgment of foreclosure and sale.

DECISION & ORDER

Motion by the respondents, inter alia, to dismiss the appeal on ground that the appeal had been rendered academic, and for an award of costs and an attorney's fee pursuant to 22 NYCRR 130-1.1(a). By decision and order on motion of this Court dated May 15, 2020, those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal as academic is granted; and it is further,

ORDERED that the appeal is dismissed; and it is further,

ORDERED that the branch of the motion which is for an award of costs and an attorney's fee pursuant to 22 NYCRR 130-1.1(a) is denied; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

In a prior appeal in a separate action, this Court granted the unopposed motion of the plaintiff in that action for leave to enter a judgment against the defendant in that action, cancelling and discharging of record the same mortgage that is the subject of this appeal (see 53 PL Realty, LLC v US Bank N.A., 153 AD3d 894). In light of this Court's determination in that appeal, the instant appeal must be dismissed (see 53 PL Realty, LLC v US Bank N.A., 153 AD3d 894).

However, the plaintiff's conduct in bringing this appeal was not frivolous, and the respondents are therefore not entitled to an award of costs or an attorney's fee pursuant to 22 NYCRR 130-1.1(a).

RIVERA, J.P., HINDS-RADIX, FORD and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court