HSBC Bank USA, N.A. v. Carpinelli

170 N.Y.S.3d 899, 207 A.D.3d 707, 2022 NY Slip Op 04717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 2022
• Docket: Index No. 10120/10
• Status: Published

Opinion

HSBC Bank USA, N.A. v Carpinelli (2022 NY Slip Op 04717)

HSBC Bank USA, N.A. v Carpinelli

2022 NY Slip Op 04717

Decided on July 27, 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 July 27, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
ROBERT J. MILLER
JOSEPH A. ZAYAS
DEBORAH A. DOWLING, JJ.

2018-13039
2021-00563
(Index No. 10120/10)

[*1]HSBC Bank USA, National Association, etc., respondent,

v

Filomeina Carpinelli, appellant, et al., defendants.

Greenberg & Wilner, LLP, New York, NY (Julian K. White of counsel), for appellant.

Greenberg Traurig, LLP, New York, NY (Ryan Sirianni of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Filomeina Carpinelli appeals from (1) an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated August 22, 2017, and (2) an order and judgment of foreclosure and sale (one paper) of the same court dated November 18, 2020. The order granted the plaintiff's unopposed motion to vacate a prior order of the same court dated November 14, 2016, granting the plaintiff's motion, inter alia, to discontinue the action, and to restore the action to the calendar. The order and judgment of foreclosure and sale, inter alia, granted the plaintiff's motion for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject premises.

ORDERED that the appeal from the order dated August 22, 2017, is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; PennyMac Corp. v Weiss, 152 AD3d 712, 713; see also U.S. Bank N.A. v Persaud, 175 AD3d 1343); and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

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

On July 17, 2006, the defendant Filomeina Carpinelli (hereinafter the defendant) executed a note in favor of Sterling National Mortgage Company, Inc., which was secured by a mortgage encumbering real property located in Greenlawn. In 2010, the plaintiff commenced this action to foreclose the mortgage against the defendant, among others, alleging that she defaulted on her loan payments. The defendant failed to timely answer the complaint. By order dated November 14, 2016, the Supreme Court granted the plaintiff's motion, inter alia, to discontinue the action. The plaintiff subsequently moved to vacate the November 14, 2016 order and to restore the action to the calendar. The defendant did not oppose the plaintiff's motion. In an order dated August 22, 2017, the court granted the plaintiff's motion to vacate the order dated November 14, 2016, and to restore the action to the calendar. On November 18, 2020, an order and judgment of foreclosure and was [*2]issued, inter alia, directing the sale of the subject premises. The defendant appeals.

Contrary to the defendant's contention, the plaintiff was not required to demonstrate its compliance with RPAPL 1304 in this action (see HSBC Bank USA, N.A. v Thorne, 189 AD3d 1193, 1195).

The defendant's remaining contentions are not properly before this Court.

BRATHWAITE NELSON, J.P., MILLER, ZAYAS and DOWLING, JJ., concur.

2018-13039 DECISION & ORDER ON MOTION

2021-00563

HSBC Bank USA, National Association, etc.,

respondent, v Filomeina Carpinelli, appellant,

et al., defendants.

(Index No. 10120/10)

By order to show cause dated October 21, 2021, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated August 22, 2017, on the ground that the right of direct appeal from that order terminated upon entry in the above-entitled action of the order and judgment of foreclosure and sale. By decision and order on motion dated January 14, 2022, the Court's motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the motion is denied as academic in light of our determination of the appeal from the order dated August 22, 2017.

BRATHWAITE NELSON, J.P., MILLER, ZAYAS and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court