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U.S. Bank, N.A. v Bishop, 2020 NY Slip Op 06572 [188 AD3d 944]

November 12, 2020

Appellate Division, Second Department

[*1]

U.S. Bank, National Association, Respondent,

v

Robert W. Bishop et al., Appellants, et al., Defendants.

John J. Caracciolo, East Northport, NY, for appellants.

RAS Boriskin, LLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Robert W. Bishop and Ann Bishop appeal from an order of the Supreme Court, Suffolk County (Joseph Pastoressa, J.), dated April 17, 2018. The order denied their motion pursuant to CPLR 3215 (c) to dismiss the complaint insofar as asserted against them as abandoned, or, in the alternative, pursuant to CPLR 317 to permit the defendant Robert W. Bishop to serve a late answer.

Motion by the plaintiff, inter alia, to dismiss the appeal from the order on the ground that the right of direct appeal terminated upon the entry of a judgment in the action. By decision and order on motion of this Court dated September 27, 2019, that branch of the motion which was to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, and upon the argument of the appeal, it is Ordered that the branch of the motion which is to dismiss the appeal is granted; and it is further, 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 judgment 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 judgment ( U.S. Bank, N.A. v Bishop , 188 AD3d 945 [2020] [decided herewith]; see CPLR 5501 [a] [1]; Matter of Aho , 39 NY2d at 248). Dillon, J.P., Roman, Duffy and Barros, JJ., concur..