Wilmington Trust Co. v. Ajudua

287 A.D.2d 451, 730 N.Y.S.2d 871, 2001 N.Y. App. Div. LEXIS 9190

Opinion

—In an action to foreclose a mortgage, the defendants Azu Ajudua and Stephanie Ajudua appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered February 16, 2000, as, upon reargument, granted the plaintiffs’ motion to amend the complaint and for summary judgment in their favor, and (2) so much of a judgment of the same court, entered September 22, 2000, as directed the foreclosure and sale of their real property.

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

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

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

Contrary to the appellants’ contention, the respondents sustained their burden of proving, as a matter of law, upon re-argument their entitlement to foreclose upon the mortgage under which the appellants, as the mortgagors, defaulted in 1991 (see, Home Sav. Bank v Arthurkill Assocs., 173 AD2d 776). The appellants failed to offer evidence sufficient to raise a triable issue of fact (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court properly granted the respondents’ summary judgment motion.

The appellants’ remaining contentions are either unpreserved for appellate review or without merit. Altman, J. P., Krausman, Florio and Cozier, JJ., concur.