U.S. Bank N.A. v. DiDato

Opinion

U.S. Bank N.A. v DiDato

2026 NY Slip Op 04891

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

U.S. Bank National Association, etc., respondent,

v

Anthony DiDato, appellant, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-04914, (Index No. 6389/13)

Valerie Brathwaite Nelson, J.P.

William G. Ford

Janice A. Taylor

James P. McCormack, JJ.

Oliver Budde, Harrison, NY, for appellant.

McCalla Raymer Leibert Pierce, LLP, New York, NY (Brian P. Scibetta of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony DiDato appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated August 10, 2018. The order granted the plaintiff's unopposed motion, inter alia, to vacate a judgment of foreclosure and sale of the same court dated April 21, 2017.

ORDERED that the appeal is dismissed, with costs.

The plaintiff commenced this action to foreclosure a mortgage against the defendant Anthony DiDato (hereinafter the defendant), among others. A judgment of foreclosure and sale dated April 21, 2017, inter alia, directed the sale of the subject property. Subsequently, the plaintiff moved, among other things, to vacate the judgment of foreclosure and sale. The motion was unopposed. In an order dated August 10, 2018, the Supreme Court granted the unopposed motion.

No appeal lies from an order or judgment entered upon the default of the appealing party (see CPLR 5511; U.S. Bank Trust, N.A. v Johnson, 229 AD3d 657). Here, since the defendant did not oppose the plaintiff's motion, inter alia, to vacate the judgment of foreclosure and sale, his appeal from the order granting the motion must be dismissed (see Fei Wu Hu v Lei, 232 AD3d 852, 853; U.S. Bank Trust, N.A. v Johnson, 229 AD3d at 658). The defendant's contentions that the order is nonetheless appealable pursuant to CPLR 103(c) or because he is raising a pure question of law are without merit.

BRATHWAITE NELSON, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court