HSBC Bank USA, N.A. v. Pacifico

2021 NY Slip Op 03312, 144 N.Y.S.3d 610, 194 A.D.3d 1029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2021
• Docket: Index No. 1625/12
• Status: Published

Opinion

HSBC Bank USA, N.A. v Pacifico (2021 NY Slip Op 03312)

HSBC Bank USA, N.A. v Pacifico

2021 NY Slip Op 03312

Decided on May 26, 2021

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 May 26, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
SYLVIA O. HINDS-RADIX, J.P.
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.

2019-00257
(Index No. 1625/12)

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

v

Joseph H. Pacifico, Jr., appellant, et al., defendants.

Law Office of Jason Tenenbaum, P.C., Garden City, NY (Jason Tenenbaum of counsel), for appellant.

McCabe, Weisberg & Conway, LLC (Blank Rome LLP, New York, NY [Andrea M. Roberts and Diana M. Eng], of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Joseph H. Pacifico, Jr., appeals from an order of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), dated November 14, 2018. The order denied that branch of that defendant's motion which was for leave to reargue his opposition to those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and for an order of reference, which had been granted in an order of the same court dated August 27, 2018.

ORDERED that the appeal from the order dated November 14, 2018, is dismissed, without costs or disbursements.

In January 2012, the plaintiff commenced this action to foreclose the subject mortgage. The defendant Joseph H. Pacifico, Jr. (hereinafter the defendant), interposed an answer asserting various affirmative defenses, including lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant served and filed opposition papers, but the plaintiff rejected service of the defendant's opposition papers on the ground that it was untimely. In an order dated August 27, 2018, the Supreme Court granted the plaintiff's motion as unopposed.

Thereafter, the defendant moved, inter alia, to vacate so much of the order dated August 27, 2018, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, and thereupon, to deny those branches of the plaintiff's motion, or, in the alternative, for leave to reargue his opposition to those branches of the plaintiff's motion. In an order dated November 14, 2018, the Supreme Court denied that branch of the defendant's motion which was for leave to reargue. The defendant appeals.

The appeal from the order dated November 14, 2018, which denied that branch of the defendant's motion which was for leave to reargue those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his [*2]answer, and for an order of reference, must be dismissed, as no appeal lies from an order denying reargument (see Martinez v Kaz USA, Inc., 183 AD3d 720; Burlington Ins. Co. v Pinnacle Demolition & Envtl. Servs. Corp., 176 AD3d 1026, 1026; Empire Natl. Bank v Genard Group, Inc., 170 AD3d 959, 959).

The defendant's contentions regarding that branch of his motion which was to vacate so much of the order dated August 27, 2018, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and for an order of reference, and thereupon, to deny those branches of the plaintiff's motion, are not properly before us, as that branch of the defendant's motion remains pending and undecided (see Katz v Katz, 68 AD2d 536).

HINDS-RADIX, J.P., CONNOLLY, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court