

Capital One, NA v Amid (2019 NY Slip Op 05380)





Capital One, NA v Amid


2019 NY Slip Op 05380


Decided on July 3, 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 July 3, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
MARK C. DILLON
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.


2016-00913
 (Index No. 17916/10)

[*1]Capital One, NA, etc., respondent,
vFarah Maleki Amid, appellant, et al., defendants.


Alexander Potruch, LLC, Garden City, NY (John H. Hall, Jr., of counsel), for appellant.
Woods Oviatt Gilman LLP (Knuckles, Komosinski & Manfro LLP, Elmsford, NY [Jordan J. Manfro and Loretta Carty], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Farah Maleki Amid appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 18, 2015. The order denied that defendant's motion pursuant to CPLR 5015(a)(1), in effect, to vacate her default in opposing the plaintiff's motion for summary judgment on the complaint insofar as asserted against her, to strike her answer, and for an order of reference, and to dismiss the complaint insofar as asserted against her.

DECISION & ORDER
Motion by the respondent to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of a judgment in this action. By decision and order on motion of this Court dated November 13, 2018, 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 and no papers having been filed in opposition or in relation thereto, and upon the argument of the appeal, it is
ORDERED that the motion to dismiss the appeal is granted; and it is further,
ORDERED that the appeal is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order entered November 18, 2015, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in this 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 (Capital One, NA v Amid, _____ AD3d _____ [Appellate Division Docket No. 2017-07126; decided herewith]; see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).
RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


