

Hudson City Sav. Bank v Berry (2019 NY Slip Op 08663)





Hudson City Sav. Bank v Berry


2019 NY Slip Op 08663


Decided on December 4, 2019


Appellate Division, Second Department


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


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



Decided on December 4, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.


2016-10251
 (Index No. 5207/12)

[*1]Hudson City Savings Bank, respondent,
vDavid Berry, et al., appellants, et al., defendants.


David Berry and Brenda E. Berry, Pleasant Valley, NY, appellants pro se.
Cohn & Roth, Mineola, NY (Michael Nayar of counsel), for respondent.

DECISION & ORDER
In an action to foreclose a mortgage, the defendants David Berry and Brenda E. Berry appeal from a judgment of foreclosure and sale of the Supreme Court, Dutchess County (Peter M. Forman, J.), dated August 18, 2016. The judgment of foreclosure and sale, upon an order of the same court dated September 8, 2014, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants and for an order or reference, and upon an order of the same court dated November 3, 2014, denying those defendants' motion for leave to reargue and renew their opposition to those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference, confirmed the referee's report and directed the sale of the subject premises.
ORDERED that the judgment of foreclosure and sale is affirmed, with costs.
In 2008, the defendants David Berry and Brenda E. Berry (hereinafter together the defendants) obtained a loan from the plaintiff in the principal sum of $420,000, which was secured by a mortgage on the subject premises. The defendants defaulted on the loan in February 2012, and in July 2012 the plaintiff commenced this action to foreclose the mortgage. By order dated September 8, 2014, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. On November 3, 2014, the court denied the defendants' motion for leave to reargue and renew their opposition to those branches of the plaintiff's motion. On prior appeals by the defendants, this Court affirmed the order dated September 8, 2014, insofar as appealed from and affirmed the order dated November 3, 2014, insofar as reviewed (see Hudson City Sav. Bank v Berry, 138 AD3d 778).
The defendants' contentions on this appeal which were raised or could have been raised in the prior appeals in this action either are barred by the doctrine of law of the case or have been waived (see Czernicki v Lawniczak, 103 AD3d 769, 770; Dimery v Ullster Sav. Bank, 82 AD3d 1034; Stokes v County of Suffolk, 63 AD2d 645, 645-646). The defendants' remaining contentions are without merit.
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.

2016-10251	DECISION & ORDER ON MOTION
Hudson City Savings Bank, respondent,
v David Berry, et al., appellants, et al., defendants.
(Index No. 5207/12)

Motion by the plaintiff to dismiss an appeal from a judgment of foreclosure and sale of the Supreme Court, Dutchess County, dated August 18, 2016, on the ground that the appeal is barred by the doctrine of res judicata. By decision and order on motion of this Court dated October 2, 2017, the motion was held in abeyance and referred to the panel of Justices hearing the appeal 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 appeal, it is
ORDERED that the motion is denied.
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


