A23D0317. JOSEPH SENN et al. v. BANK OF NEW YORK MELLON et al.

Joseph Senn, Mark P. Susca and Mimi F. Senn filed an action against numerous defendants, including The Bank of New York Mellon, to void a security deed. The trial court granted The Bank‘s motion to dismiss and dismissed the plaintiffs’ action with prejudice in its entirety. The plaintiffs thereafter filed this timely discretionary application.

Under OCGA § 5-6-34 (a) (1), a party may file a direct appeal from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35.” It does not appear that any provision of OCGA § 5-6-35, the discretionary appeal statute, applies here. Rather, the trial court‘s dismissal of the plaintiffs’ action may be appealed directly.

We will grant an otherwise timely application for discretionary appeal if the lower court‘s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. The plaintiffs shall have ten days from the date of this order to file a notice of appeal with the trial court if they have not already done so. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia

Clerk‘s Office, Atlanta, 05/22/2023

I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

Stephen E. Castlen, Clerk.