| Bank of Am., N.A. v DeNardo |
| 2017 NY Slip Op 05195 [151 AD3d 1008] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1](June 28, 2017)
| Bank of America, N.A., Respondent, v Sylvia RancicDeNardo et al., Appellants, et al., Defendants. |
McMahon & McCarthy, Bronx, NY (Matthew J. McMahon of counsel), forappellants.
Frenkel Lambert Weiss Weisman & Gordon, LLP (Bryan Cave, LLP, New York, NY[Suzanne M. Berger and Megan A. Pierson], of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Sylvia Rancic DeNardo and JosephDeNardo appeal (1), as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Giacomo, J.), dated April 1, 2015, as granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthem and for an order of reference, denied that branch of their cross motion which was to dismissthe complaint insofar as asserted against them, and granted the plaintiff's cross motion for leaveto amend the complaint and the caption nunc pro tunc, (2) from an order of the same court, alsodated April 1, 2015, which, inter alia, referred the matter to a referee to ascertain and computethe amount due on the mortgage loan, and (3) from a judgment of foreclosure and sale of thesame court dated October 2, 2015, which, upon the orders, is in favor of the plaintiff and againstthem directing a foreclosure and sale of the subject property.
Motion by the respondent, inter alia, to dismiss the appeals from the orders on the groundthat the right of direct appeal therefrom terminated with the entry of the judgment in the action.By decision and order on motion of this Court dated March 11, 2016, that branch of the motionwas held in abeyance and referred to the panel of Justices hearing the appeals for determinationupon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which is to dismiss the appeals from the orders isgranted; and it is further,
Ordered that the appeals from the orders, are dismissed; and it is further,
[*2] Ordered that the judgment of foreclosure and sale isaffirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeals from the orders dated April 1, 2015, must be dismissed because the right ofdirect appeal therefrom terminated with the entry of the judgment of foreclosure and sale (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeals from the ordersare brought up for review and have been considered on the appeal from the judgment offoreclosure and sale (see CPLR 5501 [a] [1]).
In 2005, the defendant Sylvia Rancic DeNardo executed a note in favor of CountrywideBank, N.A., which was secured by a mortgage on residential property owned by Sylvia and herhusband, the defendant Joseph DeNardo (hereinafter together the defendants). The mortgage wasexecuted by both defendants. Thereafter, Sylvia executed a second note dated September 10,2007, and both defendants executed a second mortgage. The notes and mortgages wereconsolidated pursuant to a consolidation, extension, and modification agreement, also datedSeptember 10, 2007. Subsequently, the mortgage was assigned to Countrywide Bank, FSB, andthen to BAC Home Loans Servicing, LP (hereinafter the plaintiff). In July 2011, the plaintiffmerged with Bank of America, N.A. (hereinafter Bank of America).
In May 2012, the plaintiff commenced this action against the defendants, among others, toforeclose the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaintand for an order of reference. The defendants cross-moved, inter alia, pursuant to CPLR 3211 (a)and 3212 to dismiss the complaint insofar as asserted against them. The plaintiff thencross-moved to amend the complaint and the caption nunc pro tunc to substitute Bank ofAmerica as the plaintiff. In two orders dated April 1, 2015, the Supreme Court granted theplaintiff's motion and cross motion, and denied the defendants' cross motion. Upon those orders,the court issued a judgment of foreclosure and sale dated October 2, 2015.
The Supreme Court properly granted the plaintiff's cross motion for leave to amend thecomplaint and caption nunc pro tunc to substitute Bank of America as the plaintiff. Leave toamend a pleading shall be freely given provided that the proposed amendment is not palpablyinsufficient or patently devoid of merit, and there is no evidence that it would prejudice orsurprise the opposing party (see CPLR 3025 [b]; Hothan v Mercy Med. Ctr., 105 AD3d 905, 906 [2013]; Blue Diamond Fuel Oil Corp. v Lev Mgt.Corp., 103 AD3d 675, 676 [2013]; Maldonado v Newport Gardens, Inc., 91 AD3d 731, 731-732[2012]). Here, Bank of America is the plaintiff's successor by merger, and the amendment of thecomplaint and caption to substitute it as the plaintiff in this action would not, by its nature, resultin prejudice or surprise to the defendants (see Mortgage Elec. Registration Sys., Inc. v Holmes, 131 AD3d680, 681-682 [2015]; UnitedFairness, Inc. v Town of Woodbury, 113 AD3d 754, 755 [2014]).
"[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of lawthrough the production of the mortgage, the unpaid note, and evidence of default" (Argent Mtge. Co., LLC v Mentesana,79 AD3d 1079, 1080 [2010] [internal quotation marks omitted]; see U.S. Bank Natl. Assn. TR U/S 6/01/98[Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711, 711 [2008]). "The burdenthen shifts to the defendant to demonstrate 'the existence of a triable issue of fact as to a bonafide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive orunconscionable conduct on the part of the plaintiff' " (U.S. Bank Natl. Assn. TR U/S6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d at 711, quoting MahopacNatl. Bank v Baisley, 244 AD2d 466, 467 [1997]).
Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law byproducing the mortgages dated October 28, 2005, and September 10, 2007, respectively, theconsolidated note dated September 10, 2007, and the consolidation, extension, and modificationagreement dated September 10, 2007, along with evidence of default in the form of the affidavitof a vice president for Bank of America, who stated that Bank of America maintained records forthe subject loan and that Sylvia Rancic DeNardo had defaulted on the loan by failing to make the[*3]monthly payments due February 1, 2009, and thereafter. Inopposition, the defendants failed to raise a triable issue of fact.
The defendants' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendantsand for an order of reference, and denied that branch of the defendants' cross motion which wasto dismiss the complaint insofar as asserted against them. Mastro, J.P., Rivera, Roman and Sgroi,JJ., concur.