| North Am. Sav. Bank, FSB v Esposito-Como |
| 2016 NY Slip Op 05634 [141 AD3d 706] |
| July 27, 2016 |
| Appellate Division, Second Department |
[*1]
| North American Savings Bank, FSB,Respondent, v Laura M. Esposito-Como, Also Known as Laura M.Espositio-Como and Others, et al., Appellants, et al.,Defendants. |
Rubin & Licatesi, P.C., Garden City, NY (Richard H. Rubin and AlexanderPaykin of counsel), for appellants.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Austin T. Shufelt of counsel),for respondent.
In an action to foreclose a mortgage, the defendants Laura M. Esposito-Como andJoseph Como appeal (1) from an order of the Supreme Court, Nassau County (Adams,J.), entered May 6, 2014, which granted those branches of the plaintiff's cross motionwhich were for summary judgment on the complaint insofar as asserted against them,denied their motion pursuant to CPLR 3025 (b) for leave to amend their answer, anddenied their separate motion pursuant to CPLR 3216 (a) to dismiss the complaint insofaras asserted against them, (2) from an order of the same court entered May 27, 2014,which granted those branches of the plaintiff's cross motion which were to strike theiranswer, to appoint a referee to compute the amount due to the plaintiff, and for leave torecord a copy of the loan modification agreement in place of the original, and (3), aslimited by their brief, from so much of a judgment of foreclosure and sale of the samecourt entered August 3, 2015, as, upon the orders entered May 6, 2014, and May 27,2014, and upon confirming the report of a referee, is in favor of the plaintiff and againstthem directing the sale of the subject property.
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals from the intermediate orders must be dismissed because the right ofdirect appeal therefrom terminated with the entry of a judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeals fromthose orders are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
Contrary to the appellants' contention, the Supreme Court properly denied theirmotion pursuant to CPLR 3025 (b) for leave to amend their answer. "In the absence ofprejudice or surprise to the opposing party, leave to amend a pleading should be freelygranted unless the proposed amendment is palpably insufficient or patently devoid ofmerit" (Marcum, LLP v Silva, 117 [*2]AD3d917, 917 [2014]; see CPLR 3025 [b]). Here, the proposed amendments werepatently devoid of merit (seeExecutive Fliteways, Inc. v Caballero, 52 AD3d 652, 652 [2008]).
The Supreme Court also properly granted those branches of the plaintiff's crossmotion which were for summary judgment on the complaint insofar as asserted againstthe appellants, to strike the appellants' answer, to appoint a referee to compute theamount due to the plaintiff, and for leave to record a copy of the loan modificationagreement in place of the original. "Generally, in moving for summary judgment in anaction to foreclose a mortgage, a plaintiff establishes its prima facie case through theproduction of the mortgage, the unpaid note, and evidence of default" (Plaza Equities, LLC vLamberti, 118 AD3d 688, 689 [2014]; see Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d1001, 1002 [2015]). Here, the plaintiff established its prima facie entitlement tojudgment as a matter of law by producing the mortgage, the unpaid note, and theaffidavit of the plaintiff's vice president attesting to the appellants' default in payment (see Pennymac Holdings, LLC vTomanelli, 139 AD3d 688 [2016]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 726[2014]; Wells Fargo Bank, N.A.v Webster, 61 AD3d 856, 856 [2009]). In opposition, the appellants failed toraise a triable issue of fact relating to any bona fide defense to foreclosure (see Bayview Loan Servicing, LLCv 254 Church St., LLC, 129 AD3d 650, 651 [2015]; Sperry Assoc. Fed. Credit Union vAlexander, 116 AD3d 759, 759 [2014]).
The appellants' remaining contentions are without merit. Eng, P.J., Roman, LaSalleand Barros, JJ., concur.