U.S. Bank N.A. v. Goldberger

Opinion

U.S. Bank N.A. v Goldberger

2026 NY Slip Op 04892

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

Herman Goldberger, appellant, et al., defendants.

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

Decided on August 5, 2026

2024-05472, 2024-05474, (Index No. 24946/09)

Valerie Brathwaite Nelson, J.P.

Lillian Wan

Laurence L. Love

Elena Goldberg Velazquez, JJ.

The Rosenfeld Law Office, PLLC, Lawrence, NY (Avinoam Rosenfeld of counsel), for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Herman Goldberger appeals from (1) an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Lawrence S. Knipel, J.), dated December 8, 2023, and (2) an order of the same court dated February 20, 2024. The order and judgment of foreclosure and sale, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. The order dated February 20, 2024, insofar as appealed from, denied those branches of the cross-motion of the defendant Herman Goldberger which were to reject the referee's report or, in the alternative, pursuant to CPLR 5001(a) to reduce the amount of accrued interest due to the plaintiff's delay in the action.

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

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

In October 2009, the plaintiff commenced this action against, among others, the defendant Herman Goldberger (hereinafter the defendant) to foreclose a mortgage on certain real property located in Brooklyn. In August 2023, the plaintiff moved, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale. The defendant cross-moved, among other things, to reject the referee's report or, in the alternative, pursuant to CPLR 5001(a) to reduce the amount of accrued interest due to the plaintiff's delay in the action. In opposition to the cross-motion, the plaintiff, inter alia, submitted evidence that the defendant had transferred his entire interest in the subject property in 2011, and the plaintiff waived its right to pursue a deficiency judgment against the defendant. In an order and judgment of foreclosure and sale dated December 8, 2023, the Supreme Court, among other things, granted those branches of the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. In an order dated February 20, 2024, the court, inter alia, denied those branches of the defendant's cross-motion. The defendant appeals.

Unless a deficiency judgment is sought against the party, "[a] party who conveys his [*2]or her interest in property that is the subject of a foreclosure action effectively divests himself or herself of standing to challenge a plaintiff's request for a judgment of foreclosure and sale" (Valiotis v Bekas, 191 AD3d 1037, 1038 [alterations and internal quotation marks omitted]; see Bank of Am., N.A. v Latif, 243 AD3d 753, 754-755; PNC Bank, N.A. v Lefkowitz, 185 AD3d 1069, 1070). Here, since the defendant transferred his entire interest in the subject property and the plaintiff elected to waive its right to seek a deficiency judgment against the defendant, the defendant possessed no rights in the property that could have been adversely affected by a judgment of foreclosure and sale and, therefore, lacked standing to challenge the plaintiff's motion (see New Penn Fin., LLC v Levanta Global, Inc., 242 AD3d 1003, 1004; Valiotis v Bekas, 191 AD3d at 1038; Deutsche Bank Natl. Trust Co. v Patrick, 173 AD3d 973, 974).

The parties' remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, and denied those branches of the defendant's cross-motion which were to reject the referee's report or, in the alternative, pursuant to CPLR 5001(a) to reduce the amount of accrued interest due to the plaintiff's delay in the action.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

2024-05472, 2024-05474 DECISION & ORDER ON MOTION

U.S. Bank National Association, etc.,

respondent, v Herman Goldberger,

appellant, et al., defendants.

(Index No. 24946/09)

Motion by the plaintiff, inter alia, to dismiss the appeals on the ground that they have been rendered academic. By decision and order on motion of this Court dated August 15, 2025, that branch of the motion which is to dismiss the appeals on the ground that they have been rendered academic 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, the papers filed in opposition thereto, and upon the submission of the appeals, it is,

ORDERED that the branch of the motion which is to dismiss the appeals on the ground that they have been rendered academic is denied.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court