| 425 E. 26th St. Owners Corp. v Beaton |
| 2015 NY Slip Op 04092 [128 AD3d 766] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| 425 East 26th Street Owners Corp.,Respondent, v Laurel Beaton, Appellant, et al.,Defendants. |
G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellant.
Rosenberg & Estis, P.C., New York, N.Y. (Deborah Riegel and Brett B. Theisof counsel), for respondent.
In an action to foreclose a lien upon a cooperative apartment unit for the nonpaymentof common charges, the defendant Laurel Beaton appeals from (1) a judgment of theSupreme Court, Kings County (Kurtz, J.), dated March 22, 2013, which, upon an orderof the same court dated March 22, 2013, inter alia, granting the plaintiff's motion toconfirm a referee's report dated November 27, 2012, and denying her cross motion todismiss the complaint, awarded the plaintiff an attorney's fee and other damages in theprincipal sum of $97,447.28 and directed the foreclosure sale of the subject propertypursuant to certain terms of sale, and (2) an order of the same court dated June 26, 2013,which granted the plaintiff's motion to amend the judgment dated March 22, 2013, byincreasing the award in the principal sum of $97,447.28 to the sum of $117,335.32.
Cross motion by the plaintiff, inter alia, to dismiss the appeals from the judgmentdated March 22, 2013, and the order dated June 26, 2013, on the ground that they havebeen rendered academic. By decision and order on motion of this Court dated July 10,2014, that branch of the cross motion was held in abeyance and referred to the panel ofJustices hearing the appeals for determination upon the argument or submissionthereof.
Upon the papers filed in support of the cross motion and the papers filed inopposition thereto, and upon the argument of the appeals, it is
Ordered that the branch of the cross motion which is to dismiss the appeals is grantedto the extent that the appeal from so much of the judgment as directed the foreclosuresale of the subject premises is dismissed as academic, and the cross motion is otherwisedenied; and it is further,
Ordered that the appeal from the order dated June 26, 2013, is dismissed; and it isfurther,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
[*2] It is the obligation of the appellant to assemble aproper record on appeal (seeElgart v Berezovsky, 123 AD3d 970, 971 [2014]; Green Tree Credit, LLC vJelks, 120 AD3d 1300 [2014]; Matter of Rose G. [Vincent G.], 120 AD3d 683, 684[2014]; Matter of George vKings County Hosp. Ctr., 119 AD3d 569 [2014]). Here, the record filed by theappellant, the defendant Laurel Beaton, does not contain the papers constituting theplaintiff's motion seeking to amend the principal sum awarded to it in a judgment datedMarch 22, 2013, or any of the papers that were submitted in support of that motion.Since the record is inadequate to enable this Court to render an informed decision on themerits regarding the appeal relating to that motion, the appeal from the order dated June26, 2013, which granted the plaintiff's motion to amend the judgment, must be dismissed(see Elgart v Berezovsky, 123 AD3d at 971; Green Tree Credit, LLC vJelks, 120 AD3d at 1300; Al-Shahrani v Hudson Auto Traders, Inc., 110 AD3d 749[2013]; Neunteufel v NelnetLoan Servs., Inc., 104 AD3d 657, 657-658 [2013]).
In that branch of its cross motion which is to dismiss the appeal from the judgment,the plaintiff contends that Beaton's appeal is academic because, while the appeal waspending, the referee, as directed by the judgment, sold the property. The plaintiff, in itscross motion papers, has established that it purchased the property at the referee's saleand thereafter sold it to a third party. Beaton does not oppose this branch of the plaintiff'scross motion. The plaintiff is partially correct.
Where there is no notice of pendency, even a third-party purchaser's actualknowledge of the pending appeal "is not legally significant" and "the owner's ability totransfer clear title to the disputed property remains unimpaired" (Da Silva vMusso, 76 NY2d 436, 438 [1990]; see Aubrey Equities v Goldberg, 247AD2d 253 [1998]). Here, because Beaton did not demonstrate the existence of a validnotice of pendency, even if she were to establish her entitlement to all the relief she seeksin her appeal from the judgment, she would have to "content [her]self with the remediesafforded by CPLR 5523, i.e., restoration of the value or purchase price already paid, inthe event of an appellate reversal" (Da Silva v Musso, 76 NY2d at 444; see Matter of Huntington HebrewCongregation of Huntington v Tanenbaum, 62 AD3d 704, 704-705 [2009]; 405 44th St. Realty Co. v 168Fortune Realty, Inc., 14 AD3d 481 [2005]; see also Vigo v 501 Second St. Holding Corp., 121 AD3d778, 779 [2014]). Accordingly, the appeal from so much of the judgment as directedthe referee to sell the subject property at auction has been rendered academic by thesubsequent sale of the property.
However, the judgment of foreclosure and sale in this case did not merely direct thesale of the subject property; instead, it also awarded the plaintiff an attorney's fee anddamages for past due common charges, which were to be satisfied, at least in part, fromthe proceeds of the sale. Therefore, to the extent that Beaton appeals from so much of thejudgment as awarded the plaintiff an attorney's fee and damages, the appeal is notacademic (see Vigo v 501 Second St. Holding Corp., 121 AD3d at 779).Accordingly, we grant the plaintiff's cross motion to dismiss the appeal from thejudgment to the extent of dismissing Beaton's appeal from so much of the judgment asdirected the referee to sell the subject property at auction, and otherwise deny the crossmotion.
In this action to foreclose a lien for unpaid common charges on a cooperativeapartment building, Beaton defaulted, and, on her previous appeal, this Court affirmedthe denial of her motion to vacate that default (see 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845,845-846 [2008]). Thereafter, and in response to the plaintiff's motion to confirm thereferee's report herein, Beaton cross-moved to dismiss the complaint. In an order datedMarch 22, 2013, the Supreme Court denied the cross motion. Beaton separately appealedfrom that order and, on the plaintiff's motion, this Court dismissed the appeal on theground that the right of direct appeal therefrom terminated with the entry of the judgment(see Matter of Aho, 39 NY2d 241, 248 [1976]; 425 E. 26th St. Owners Corp.v Beaton, 128 AD3d 766 [2015] [decided herewith]). However, the issues raised on the appeal from the March22, 2013, order are brought up for review and have been considered herein on the appealfrom the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly denied Beaton's cross motion to dismiss the complaint.By virtue of her default, Beaton is deemed to have admitted all factual allegations in theplaintiff's complaint, leaving only the question of damages (see Mortgage Elec. RegistrationSys., Inc. v Smith, 111 AD3d 804, 806 [2013]; Rawlings v Gillert, 104 AD3d929, 931 [2013]).
[*3] Furthermore, in itsorder dated March 22, 2013, the Supreme Court properly confirmed the referee's reportdated November 27, 2012, and, on March 22, 2013, entered judgment upon the order.Contrary to Beaton's contentions, the record supported the referee's award of attorneys'fees to the plaintiff, and the referee and the Supreme Court properly took intoconsideration the objections that Beaton raised to the plaintiff's proof of its fees.
Beaton's remaining contentions are without merit. Rivera, J.P., Roman, Sgroi andDuffy, JJ., concur.