Indymac Federal Bank, FSB v. Batista

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

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.