

Emigrant Bank v Wang Real Prop., LLC (2018 NY Slip Op 05574)





Emigrant Bank v Wang Real Prop., LLC


2018 NY Slip Op 05574


Decided on August 1, 2018


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 August 1, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
LINDA CHRISTOPHER, JJ.


2016-05648
 (Index No. 704061/14)

[*1]Emigrant Bank, formerly known as Emigrant Savings Bank, plaintiff, 
vWang Real Property, LLC, et al., appellants, et al., defendants; 41st Road Properties, LLC, nonparty-respondent.


Wang Law Office, PLLC, Flushing, NY (C. Jean Wang of counsel), for appellants.
Aronauer & Yudell, LLP, New York, NY (Joseph Aronauer of counsel), for nonparty-respondent.
In an action to foreclose a mortgage, the defendants Wang Real Property, LLC, Roug Kang Wang, and Stella Wang appeal from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered May 18, 2016. The order granted the motion of nonparty 41st Road Properties, LLC, to substitute it as the plaintiff and to amend the caption accordingly, and denied those defendants' cross motion for leave to renew their prior cross motion for summary judgment dismissing the complaint insofar as asserted against them, which had been denied in orders of the same court entered May 11, 2015, and September 29, 2015, and to vacate the order entered September 29, 2015, which, inter alia, granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against them and for an order of reference.

DECISION & ORDER
Motion by nonparty 41st Road Properties, LLC, to dismiss the appeal from the order entered May 18, 2016, on the ground that the right of direct appeal therefrom terminated upon entry of a judgment in this action. By decision and order on motion of this Court dated June 15, 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 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 from the order entered May 18, 2016, is granted; and it is further,
ORDERED that the appeal from the order entered May 18, 2016, is dismissed, with costs.
The appeal from the order entered May 18, 2016, should be dismissed because the right of direct appeal therefrom terminated with the entry of an 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 [*2]judgment of foreclosure and sale (41st Road Props., LLC v Wang Real Prop., LLC, _____ AD3d _____ [Appellate Division Docket No. 2016-09989; decided herewith]; see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).
BALKIN, J.P., LEVENTHAL, HINDS-RADIX and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


