Residential Mtge. Loan Trust 2013-TT2 v. Fiorita

2021 NY Slip Op 03206, 144 N.Y.S.3d 372, 194 A.D.3d 974

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2021
• Docket: Index No. 600936/16
• Status: Published

Opinion

Residential Mtge. Loan Trust 2013-TT2 v Fiorita (2021 NY Slip Op 03206)

Residential Mtge. Loan Trust 2013-TT2 v Fiorita

2021 NY Slip Op 03206

Decided on May 19, 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 19, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
SYLVIA O. HINDS-RADIX, J.P.
HECTOR D. LASALLE
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.

2018-11096
2019-12374
(Index No. 600936/16)

[*1]Residential Mortgage Loan Trust 2013-TT2, etc., appellant,

v

Peter E. Fiorita, etc., et al., defendants, Anna Fiorita, etc., respondent.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Evelyn P. Flores of counsel), for appellant.

Young Law Group, PLLC, Bohemia, NY (Justin F. Pane of counsel), for respondent.

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Peter H. Mayer, J.), dated August 6, 2018, and (2) a judgment of the same court (Linda J. Kevins, J.), dated October 10, 2018. The order granted the motion of the defendant Anna Fiorita pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred. The judgment, upon the order, is in favor of that defendant and against the plaintiff dismissing the complaint insofar as asserted against her.

DECISION & ORDER

Motion by the defendant Anna Fiorita, inter alia, to dismiss the appeal from the order on the ground that the right of direct appeal therefrom terminated upon entry of the judgment. By decision and order on motion dated November 13, 2019, that branch of the 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 papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that that branch of the motion is granted, and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

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

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

In January 2016, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Anna Fiorita (hereinafter the defendant). The defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred. The Supreme Court granted the defendant's motion, and the plaintiff appeals.

The defendant sustained her initial burden of demonstrating, prima facie, that the action was untimely commenced by establishing that the mortgage debt was accelerated in a prior foreclosure action commenced in 2007, which was dismissed in 2014 for lack of personal jurisdiction over the defendant (see Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d 1324, 1325). In opposition, the plaintiff failed to raise a triable issue of fact as to whether this action was timely commenced, as it failed to submit admissible evidence supporting its claim that the debt was not validly accelerated in the 2007 action (see Federal Natl. Mtge. Assn. v Puma, 186 AD3d 457, 458-459; Bank of N.Y. Mellon v Ahmed, 181 AD3d 634, 636).

Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint insofar as asserted against her as time-barred.

HINDS-RADIX, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court