| Debcon Fin. Servs., Inc. v 83-17 Broadway Corp. |
| 2009 NY Slip Op 02967 [61 AD3d 712] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Debcon Financial Services, Inc., Plaintiff, v 83-17Broadway Corp., Appellant, et al., Defendant. Brett Morgan, LLC, Nonparty Respondent.(Action No. 1.) Debcon Financial Services, Inc., Plaintiff, v 83-17 Broadway Corp., Appellant,and Demetra Sirica et al., Defendants. Joseph Noormand et al., Nonparty Respondents. (ActionNo. 2.) |
—[*1] Lindenbaum & Young, Brooklyn, N.Y. (Alan H. Young of counsel), for Brett Morgan, LLC,nonparty respondent in actions No. 1 and 2. Castro & Karten, LLP, New York, N.Y. (Claude Castro of counsel), for Joseph Noormand,nonparty respondent in action No 2. Andrew Hirschhorn, Rosedale, N.Y., for defendant Demetra Sirica, and Demetra Sirica, prose.
In two related actions to foreclose two mortgages, 83-17 Broadway Corp., a defendant inboth actions, appeals from (1) an order of the Supreme Court, Queens County (Price, J.), enteredNovember 22, 2006, in action No. 1, (2), as limited by its brief, from so much of an order of the[*2]same court also entered November 22, 2006, as denied thatbranch of its motion in action No. 1 which was to vacate a judgment of foreclosure and saledated December 20, 1999, entered upon its default, and (3), as limited by its brief, from so muchof an order of the same court also entered November 22, 2006, as denied its cross motion inaction No 2, inter alia, to cancel a notice of pendency filed against the subject property onSeptember 29, 1998, and to vacate a judgment of foreclosure and sale entered September 17,2001, upon its default.
Ordered that the appeal from the first order entered November 22, 2006 is dismissed asabandoned, without costs or disbursements; and it is further,
Ordered that the second order entered November 22, 2006 is affirmed insofar as appealedfrom, without costs or disbursements; and it is further,
Ordered that the third order entered November 22, 2006 is modified, on the law and thefacts, by deleting the provisions thereof denying those branches of the cross motion of thedefendant 83-17 Broadway Corp. which were to cancel the notice of pendency filed against thesubject property on September 29, 1998 and to vacate the judgment of foreclosure and saleentered September 17, 2001, and substituting therefor provisions granting those branches of thecross motion; as so modified, the third order entered November 22, 2006 is affirmed insofar asappealed from and the matter is remitted to the Supreme Court, Queens County, for furtherproceedings, without costs or disbursements.
While the Supreme Court correctly denied those branches of the motion and cross motion ofthe defendant 83-17 Broadway Corp. (hereinafter Broadway) which were to vacate the defaultjudgments in both of the instant foreclosure actions as precluded by the law of the case doctrine(see Hampton Val. Farms, Inc. v Flower& Medalie, 40 AD3d 699, 701 [2007]), this Court is not bound by the doctrine and mayconsider those branches of the motion and cross motion on the merits (see Mosher-Simons vCounty of Allegany, 99 NY2d 214, 218 [2002]; Meekins v Town of Riverhead, 20 AD3d 399, 400 [2005];Detko v McDonald's Rests. of N.Y., 198 AD2d 208 [1993]). Contrary to Broadway'scontention, the Supreme Court properly declined to vacate the judgment of foreclosure enteredupon Broadway's default in action No. 1, as Broadway failed to demonstrate a reasonable excusefor its default and a meritorious defense (see CPLR 5015; Citicorp Mtge. vRodelli, 249 AD2d 736 [1998]). Although a foreclosure sale may be set aside when "fraud,collusion, mistake or misconduct casts suspicion on the fairness of the sale" (Polish Natl.Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 407 [1983]), under thecircumstances of this case we are satisfied that the sale in the first foreclosure action was fair.
However, the default judgment in action No. 2 must be vacated, because no valid notice ofpendency was filed at least 20 days prior to the entry of the final judgment (see NYCTL 1999-1 Trust v Chalom,47 AD3d 779, 780 [2008]; Wasserman v Harriman, 234 AD2d 596, 598 [1996];Slutsky v Blooming Grove Inn, 147 AD2d 208 [1989]).
Finally, we do not address the arguments raised by the defendant Demetra Sirica in her briefdenominated as a "respondent's" brief. Since her brief contests the Supreme Court's denial of herindividual motions, she cannot appear here as respondent (see CPLR 5511). If, as sheclaims, [*3]she was not served with a notice of entry of the ordersat issue, she "may still timely file a notice of appeal" (Nagin v Long Is. Sav. Bank, 94AD2d 710, [1983]).
The appeal from the first order entered November 22, 2006 must be dismissed as abandoned,as the appellant did not raise any arguments relating to that order in its brief (see Andre vCity of New York, 47 AD3d 605, 606 [2008]). Rivera, J.P., Covello, Leventhal andChambers, JJ., concur. [As corrected by unreported motion dated July 28, 2009, see 2009 NY Slip Op 79194(U).]