HSBC Bank USA, N.A. v. Jimenez-Zayas

2018 NY Slip Op 5832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2018
• Docket: 2016-01467
• Status: Published

Opinion

HSBC Bank USA, N.A. v Jimenez-Zayas (2018 NY Slip Op 05832)

HSBC Bank USA, N.A. v Jimenez-Zayas

2018 NY Slip Op 05832

Decided on August 22, 2018

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 August 22, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
BETSY BARROS, JJ.

2016-01467
2016-01469
2016-01470
(Index No. 31267/12)

[*1]HSBC Bank USA, N.A., appellant,

v

Sandra Jimenez-Zayas, etc., respondent, et al., defendants.

McCabe, Weisberg & Conway, P.C., New Rochelle, NY (Mark Golab, Matthew S. Blum, and Brett Milchman of counsel), for appellant.

Zayas Law Offices, P.C., Stony Point, NY (Richard R. Zayas of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (Alan D. Scheinkman, J.), dated September 30, 2013, (2) an order of the same court (Robert M. Berliner, J.) dated January 6, 2016, and (3) a money judgment of the same court dated January 11, 2016. The order dated September 30, 2013, inter alia, found that the plaintiff had failed to engage in settlement discussions and negotiations in good faith pursuant to CPLR 3408 and tolled the running of interest on the underlying mortgage loan, subject to certain conditions. The order dated January 6, 2016, granted the unopposed motion of the defendant Sandra Jimenez-Zayas, inter alia, in effect, to enforce the order dated September 30, 2013. The money judgment, upon the order dated January 6, 2016, is in favor of the defendant Sandra Jimenez-Zayas and against the plaintiff in the total sum of $27,029.30.

ORDERED that the appeals are dismissed, with one bill of costs.

The order dated January 6, 2016, as well as the money judgment dated January 11, 2016, were both entered upon the plaintiff's default. No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Morgan Stanley Mtge. Loan Trust [2007-8XS] v Harding, 141 AD3d 511).

As for the order dated September 30, 2013, no appeal lies as of right from an order which does not determine a motion made on notice (see CPLR 5701[a][2]; U.S. Bank N.A. v Smith, 123 AD3d 914), and we decline to grant leave to appeal.

RIVERA, J.P., CHAMBERS, AUSTIN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court