HSBC Bank USA, N.A. v Kalenborn, 2023 NY Slip Op 02108 [215 AD3d 929]

April 26, 2023

Appellate Division, Second Department

[*1]

HSBC Bank USA, National Association, Respondent,

v

Margaret Kalenborn et al., Appellants, et al., Defendants.

Charles Wallshein, Melville, NY, for appellants.

Reed Smith LLP, New York, NY (Andrew B. Messite and Michael V. Margarella of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Margaret Kalenborn and Douglas Kalenborn appeal from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated June 10, 2020. The order, insofar as appealed from, (1) denied that branch of their motion which was for a hearing to determine whether sanctions should be imposed upon the plaintiff for failing to negotiate in good faith pursuant to CPLR 3408, and (2) denied that branch of their cross-motion which was for summary judgment dismissing the complaint insofar as asserted against them based upon the plaintiff’s failure to comply with RPAPL 1304.

Ordered that the appeal is dismissed, without costs or disbursements.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action ( see Matter of Aho , 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the separate appeal from the order and judgment of foreclosure and sale ( see CPLR 5501 [a] [1]; HSBC Bank USA, N.A. v Kalenborn , 215 AD3d 930 [2023] [decided herewith]). Brathwaite Nelson, J.P., Rivera, Ford and Taylor, JJ., concur..