

U.S. Bank N.A. v Maniscalco (2019 NY Slip Op 00493)





U.S. Bank N.A. v Maniscalco


2019 NY Slip Op 00493


Decided on January 23, 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 January 23, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.


2016-02381
2016-02383
 (Index No. 14940/09)

[*1]U.S. Bank National Association, etc., respondent,
vEdward Maniscalco, appellant, et al., defendants.


Lester & Associates, P.C., Garden City, NY (Gabriel R. Korinman of counsel), for appellant.
Akerman LLP, New York, NY (Jordan M. Smith and Natsayi Mawere of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Edward Maniscalco appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 21, 2015, and October 22, 2015, respectively. The order entered October 21, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Edward Maniscalco and for an order of reference. The order entered October 22, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Edward Maniscalco, for an order of reference, to strike his answer, and to appoint a referee to compute the amount due to the plaintiff.

DECISION & ORDER
Motion by the plaintiff to dismiss the appeals from the orders on the ground that the right of direct appeal therefrom terminated with the entry on January 4, 2017, of the judgment of foreclosure and sale in the action. By decision and order on motion of this Court dated January 31, 2018, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is
ORDERED that the motion is granted; and it is further,
ORDERED that the appeals are dismissed, with one bill of costs.
The appeals from the intermediate orders entered October 21, 2015, and October 22, 2015, must be dismissed because the right of direct appeal therefrom terminated with the entry on January 4, 2017, of the judgment of foreclosure and sale in this action (see Matter of Aho, 39 NY2d 241, 248; Johnson & Cohen, LLP v Gilberg, 124 AD3d 727; Citibank, N.A. v Swiatkowski, 98 AD3d 554), and on September 17, 2018, the appeal by the defendant Edward Maniscalco from that judgment of foreclosure and sale (Appellate Division Docket No. 2017-03766) was deemed [*2]dismissed without further order based on the appellant's failure to perfect the appeal (see 22 NYCRR 1250.10[a]).
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


