| Bank of N.Y. Mellon v He |
| 2017 NY Slip Op 05130 [151 AD3d 1403] |
| June 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The Bank of New York Mellon, Trustee for CSMC Trust2011-11, Respondent, v Xiaoling Shirley He, Also Known as Xiaoling S. He, Appellant, et al.,Defendant. |
Xiaoling Shirley He, Clifton Park, appellant pro se.
Cohn & Roth, Mineola (Edward C. Klein of counsel), for respondent.
McCarthy, J.P. Appeal from an order of the Supreme Court (Chauvin, J.), entered December12, 2014 in Saratoga County, which, among other things, denied defendant Xiaoling Shirley He'smotion to enforce a prior order.
In 2007, defendant Xiaoling Shirley He (hereinafter defendant), for the purpose of securing aloan in the principal sum of $148,400, executed and delivered a note and mortgage against herresidence to Home Loan Center, Inc. Through a series of transfers, plaintiff became the bearer ofthe note and holder of the mortgage. In September 2011, defendant defaulted on the loan byfailing to make the monthly payments. In February 2012, plaintiff commenced the instantforeclosure action. Thereafter, plaintiff moved for, among other things, summary judgment andto appoint a referee. In June 2013, Supreme Court (Ferradino, J.), among other things, grantedplaintiff's motion, struck defendant's answer and counterclaims and appointed a referee to"compute the amount due, except for [counsel] fees, to the plaintiff herein for principal, interestand other disbursements," providing defendant a credit for any partial payments tendered.
In July 2013, the referee issued a report in which he computed that defendant owed plaintiff$174,525.84 on the note and mortgage, plus per diem interest of $31.41 starting July 2013.Thereafter, plaintiff moved to confirm the report and for a judgment of foreclosure and [*2]sale. On August 16, 2013, plaintiff's agent, Green Tree Servicing,LLC, sent defendant a letter informing her that "[t]he amount needed to bring [her] accountcurrent [was] $39,524.64," and the parties agree that defendant paid that sum on September 11,2013. On September 16, 2013, Green Tree Servicing sent defendant a letter stating that thepayoff amount on her account was $151,356, and both parties agree that defendant paid that sumon September 26, 2013. In October 2013, Supreme Court issued a judgment of foreclosure andsale granting plaintiff a judgment in the amount of $174,525.84 in satisfaction of the note andmortgage, $1,797 for costs and $3,300 for counsel fees, plus interest on these sums. Asatisfaction and discharge of mortgage were recorded with Saratoga County in November2013.
In September 2014, defendant moved to, among other things, enforce the June 2013 orderand sought a refund of sums she claimed were overpayments for principal, interest, counsel feesand costs. Plaintiff opposed defendant's motion and cross-moved to vacate the judgment offoreclosure and sale, cancel the notice of pendency and discontinue the foreclosure action.Defendant did not oppose plaintiff's cross motion. Supreme Court (Chauvin, J.) denieddefendant's motion as an untimely and improper challenge to the sums determined by thejudgment, then granted plaintiff's cross motion, vacated the judgment, canceled the notice ofpendency and discontinued the action. Defendant appeals, and we affirm.
Contrary to defendant's contention, the fact that Supreme Court granted plaintiff's crossmotion and vacated the judgment, canceled the notice of pendency and discontinued the action,based on the satisfaction and discharge of mortgage, is not a "moot" issue that she need notaddress. To the contrary, in the absence of a judgment, its underlying orders or any ongoingaction, there are no orders or judgments to be enforced as requested by defendant's motion. Asdefendant fails to make any argument on this appeal as to a legal error in Supreme Court'sdetermination to grant plaintiff's cross motion dismissing the action based on the satisfaction anddischarge of the mortgage, her arguments as to the proper enforcement of orders or judgmentsthat are now vacated cannot prevail (seegenerally Galasso, Langione & Botter, LLP v Liotti, 127 AD3d 688, 688 [2015]).In any event, neither the June 2013 order nor the October 2013 judgment provided defendant anyrelief, and therefore any enforcement of that order or judgment would not have included anypayments from plaintiff to defendant.
Defendant's remaining contentions are equally without merit. If we construe defendant'smotion as one to reargue, given that it was filed 16 months after the order and 11 months afterthe judgment, it was untimely (see CPLR 2221 [d] [3]). In any event, no appeal lies fromthe denial of a motion to reargue (seeWells Fargo, N.A. v Levin, 101 AD3d 1519, 1520 [2012], lv dismissed 21NY3d 887 [2013]; Matter of County ofBroome, 90 AD3d 1260, 1261 [2011]). If we construe defendant's motion as one torenew, it was properly denied on the ground that defendant failed to provide any reasonablejustification for her failure to present the evidence proffered prior to the June 2013 order or thejudgment of foreclosure and sale (see CPLR 2221 [e] [1], [3]; State of New York v Williams, 73AD3d 1401, 1403 [2010], lv denied 15 NY3d 709 [2010]). Defendant's remainingcontentions are also academic and/or without merit.
Egan Jr., Rose, Devine and Mulvey, JJ., concur. Ordered that the order is affirmed, withoutcosts.