Helm v. PHH Mtge. Corp.

2021 NY Slip Op 02070

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2021
• Docket: Index No. 159908/19 Appeal No. 13502N Case No. 2020-03278
• Status: Published

Opinion

Helm v PHH Mtge. Corp. (2021 NY Slip Op 02070)

Helm v PHH Mtge. Corp.

2021 NY Slip Op 02070

Decided on April 01, 2021

Appellate Division, First 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 and Entered: April 01, 2021
Before: Manzanet-Daniels, J.P., Kern, González, Shulman, JJ.

Index No. 159908/19 Appeal No. 13502N Case No. 2020-03278

[*1]Martin Helm et al., Plaintiffs-Appellants,

v

PHH Mortgage Corporation, Defendant-Respondent, XYZ, Inc., et al., Defendants.

Law Offices of Ari Mor, P.C., New York (Ari Mor of counsel), for appellants.

Houser LLP, New York (David S. Yohay of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about January 9, 2020, which denied plaintiffs' motion for a preliminary injunction to enjoin defendant PHH Mortgage Corporation (PHH) from selling or transferring plaintiffs' cooperative shares, and granted PHH's cross motion to dismiss the complaint, unanimously dismissed, without costs.

PHH's cross motion to dismiss was unopposed, as plaintiffs admittedly failed to submit opposition, and the court denied their oral application to submit late papers. No appeal lies from an order entered on the default of an aggrieved party, and having defaulted on PHH's cross motion, their remedy is not an appeal but a motion to vacate (see Shannon v City of New York, 275 AD2d 671 [1st Dept 2000]; CPLR 5511).

In any event, plaintiffs would be collaterally estopped from raising the identical issues raised when their previous action was dismissed upon their default, as they deliberately refused to litigate, and abandoned their claim that PHH failed to provide proper notice of the impending foreclosure and sale (see Matter of Abady, 22 AD3d 71, 83-85 [1st Dept 2005]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 1, 2021