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JPMorgan Chase Bank, N.A. v Newton, 2022 NY Slip Op 01775 [203 AD3d 899]

March 16, 2022

Appellate Division, Second Department

[*1]

JPMorgan Chase Bank, National Association, Respondent,

v

Gary Newton, Appellant, et al., Defendants.

Gary G. Newton, sued herein as Gary Newton, also known as Gary G. Newton, Chester, NY, appellant pro se.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta and David Gantz of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Gary Newton appeals from an order of the Supreme Court, Orange County (Robert H. Freehill, J.), dated May 1, 2018. The order, insofar as appealed from, denied that branch of the motion of the defendants Gary Newton and Sharon Newton which was for leave to serve and file a third amended answer.

By order to show cause dated January 30, 2020, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the right of direct appeal from the order terminated upon entry in the action of the order and judgment of foreclosure and sale. Motion by the appellant, inter alia, to review the order on the appeal from the order and judgment of foreclosure and sale. By decision and order on motion of this Court dated May 22, 2020, the motion to dismiss the appeal and that branch of the appellant’s motion which is to review the order on the appeal from the order and judgment of foreclosure and sale were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the appellant’s motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is Ordered that the motion to dismiss the appeal from the order is granted; and it is further, Ordered that the appeal is dismissed, without costs or disbursements; and it is further, Ordered that that branch of the appellant’s motion which is to review the order on the appeal from the order and judgment of foreclosure and sale is denied as unnecessary ( see CPLR 5501 [a] [1]).

The appeal from the order must be dismissed because the right of direct appeal [*2] 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 appeal from the order and judgment of foreclosure and sale ( JPMorgan Chase Bank, N.A.

v Newton , 203 AD3d 902 [2022] [decided herewith]; see CPLR 5501 [a] [1]; Matter of Aho , 39 NY2d at 248). Dillon, J.P., Duffy, Connolly and Christopher, JJ., concur..