U.S. Bank N.A. v DiDato

Aug 5, 2026
2024-00483
Versions:2026 NY Slip Op 04890

Oliver Budde, Harrison, NY, for appellant.

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

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony DiDato appeals from (1) an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated November 9, 2023, and (2) an order and judgment of foreclosure and sale (one paper) of the same court also dated November 9, 2023. The order, insofar as appealed from, granted the plaintiff‘s motion to confirm a referee‘s report and for a judgment of foreclosure and sale, denied those branches of the cross-motion of the defendant Anthony DiDato which were pursuant to CPLR 5015(a) to vacate so much of an order of the same court dated June 28, 2021, as granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint insofar as asserted against that defendant, and upon vacatur, to deny that branch of the plaintiff‘s motion, and pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him. The order and judgment of foreclosure and sale, inter alia, directed the sale of the subject property.

ORDERED that the appeal from the order dated November 9, 2023, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

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

The plaintiff commenced this action to foreclose a mortgage against the defendant Anthony DiDato (hereinafter the defendant), among others. In an order dated June 28, 2021, the Supreme Court, inter alia, granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint insofar as asserted against the defendant (hereinafter the June 2021 order). The plaintiff subsequently moved to confirm a referee‘s report and for a judgment of foreclosure and sale. The defendant cross-moved, among other things, pursuant to CPLR 5015(a) to vacate so much of the June 2021 order as granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint insofar as asserted against him and, upon vacatur, to deny that branch of the plaintiff‘s motion, and pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the statute of limitations. In an order dated November 9, 2023, the Supreme Court, inter alia, granted the plaintiff‘s motion and denied those branches of the cross-motion. The court thereafter issued an order and judgment of foreclosure and sale dated November 9, 2023, among other things, directing the sale of the subject property. The defendant appeals.

The appeal from the order dated November 9, 2023, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale 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 order and judgment of foreclosure and sale (see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).

Pursuant to CPLR 5015(a), a court may vacate an order or judgment “for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; see CPLR 5015[a]). “In addition to the grounds set forth in section 5015(a), a court may vacate it own judgment [or order] for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d at 68).

Here, the Supreme Court properly denied that branch of the defendant‘s cross-motion which was pursuant to CPLR 5015(a) to vacate so much the June 2021 order as granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint insofar as asserted against him, as the defendant failed to establish any basis upon which to vacate the order (see Countrywide Home Loans Servicing, L.P. v DiGiovanni, 205 AD3d 676, 677; CitiMortgage, Inc. v Maldonado, 171 AD3d 1007, 1009). Additionally, having properly denied vacatur, the court properly denied the remaining branches of the defendant‘s cross-motion (see CitiMortgage, Inc. v Maldonado, 171 AD3d at 1009; Citimortgage, Inc. v Baser, 137 AD3d 735, 736).

The parties’ remaining contentions are either improperly raised for the first time on appeal or without merit.

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

ENTER:

Darrell M. Joseph

Clerk of the Court