Indymac Federal Bank, FSB v. Batista

101 A.D.3d 952, 956 N.Y.2d 181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2012
• Status: Published

Opinion

Contrary to the contention of the defendant Luisa Batista, the record does not reflect that the order appealed from was entered as the result of a settlement, which would require dismissal of the appeal (see CPLR 2104; Matter of Martinez v Martinez, 15 AD3d 663 [2005]). Since the order appealed from was not the result of a settlement, and the only basis for, inter alia, declaring the subject mortgage null and void was a colloquy between the Supreme Court and Batista, during which the plaintiff was not afforded the opportunity to present evidence and cross-examine Batista, the plaintiff was deprived of its right to due process of law (see Logan v Zimmerman Brush Co., 455 US 422, 429 [1982]). Accordingly, the order must be reversed. Rivera, J.P., Chambers, Hall and Lott, JJ., concur.