Summary
In European Am. Bank v. Perspective Dev. Corp. (220 A.D.2d 717, 718), this Court held that once a tax lien foreclosure of the subject property had "moot[ed]" the plaintiff-mortgagee's lien in a pending foreclosure action, the plaintiff's proper course was to commence an action at law on the underlying note (see also, Lehman v. Roseanne Investors Corp., 106 A.D.2d 617).
Summary of this case from Bank of New York v. Midland Ave. DevelopmentOpinion
October 30, 1995
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from the order entered July 29, 1994, is dismissed; and it is further,
Ordered that the amended judgment is reversed, on the law, the order entered July 29, 1994, is vacated; the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for re-entry of the original judgment of foreclosure and sale as of its original date of entry; and it is further,
Ordered that the appellants are awarded one bill of costs.
The appeal from the intermediate order entered July 29, 1994, must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the amended judgment (see, CPLR 5501 [a] [1]).
When the foreclosure action was rendered moot and the security of the mortgage was destroyed by reason of the New Rochelle in rem tax foreclosure judgment and deed, the only recourse available to the plaintiff was to bring an action in law to recover on the note. Thus, it was error to have granted the plaintiff's cross motion and to have permitted entry of an amended judgment "converting" the original judgment of foreclosure and sale into a judgment against the appellants (see generally, Boyd v. Jarvis, 74 A.D.2d 937; Irving Trust Co. v Seltzer, 265 App. Div. 696; see also, Lehman v. Roseanne Investors Corp., 106 A.D.2d 617). Therefore, the Supreme Court should have granted the appellants' motion. Balletta, J.P., Thompson, Ritter and Florio, JJ., concur.