

Wells Fargo Bank, N.A. v Digirolamo (2020 NY Slip Op 03945)





Wells Fargo Bank, N.A. v Digirolamo


2020 NY Slip Op 03945


Decided on July 15, 2020


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 15, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.


2018-13316
 (Index No. 35271/13)

[*1]Wells Fargo Bank, N.A., respondent,
vMichael A. Digirolamo, et al., defendants, Jaime A. Digirolamo, etc., appellant.


Isabel L. Becker, LLC, New City, NY (Steven H. Becker of counsel), for appellant.
Woods Oviatt Gilman LLP (Reed Smith LLP, New York, NY [Michael V. Margarella and Andrew B. Messite], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Jaime A. Digirolamo appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Rockland County (Rolf M. Thorsen, J.), dated October 31, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated November 30, 2017, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Jaime A. Digirolamo, to strike that defendant's answer, and for an order of reference, among other things, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale and directed the sale of the subject property.

DECISION & ORDER
Cross motion by the plaintiff to dismiss the appeal on the ground that dismissal of a prior appeal for failure to perfect precludes consideration of the issues raised on this appeal pursuant to Bray v Cox  (38 NY2d 350). By decision and order on motion of this Court dated June 19, 2019, the cross 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 cross motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the cross motion to dismiss the appeal is granted; and it is further,
ORDERED that the appeal is dismissed, with costs.
In this action to foreclose a mortgage, the defendant Jaime A. Digirolamo (hereinafter the defendant) previously appealed from an order dated November 30, 2017, which, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant. That appeal was deemed dismissed for failure to perfect (see  22 NYCRR 1250.10[a]). The defendant seeks to raise the issues decided in the November 30, 2017, order on the present appeal. As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for failure to perfect, although this Court has the inherent jurisdiction to do so (see Rubeo [*2]v National Grange Mut. Ins. Co. , 93 NY2d 750; Bray v Cox , 38 NY2d 350). We decline to exercise our discretion in this case.
RIVERA, J.P., ROMAN, HINDS-RADIX and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


