Opinion
11-17-2017
KEYBANK NATIONAL ASSOCIATION, Plaintiff–Respondent, v. Philip SIMAO, Defendant–Appellant, et al., Defendants. (Appeal No. 1.).
McMahon, Kublick & Smith, P.C., Syracuse (Jan S. Kublick of Counsel), for defendant-appellant. Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for plaintiff-respondent.
McMahon, Kublick & Smith, P.C., Syracuse (Jan S. Kublick of Counsel), for defendant-appellant.
Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for plaintiff-respondent.
MEMORANDUM:
In appeal No. 2, Philip Simao (defendant) purports to appeal from a decision of Supreme Court granting plaintiff's motion for a judgment of foreclosure and sale. Inasmuch as no appeal lies from a decision, that appeal is dismissed (see CPLR 5512[a] ; Montanaro v. Weichert, 145 A.D.3d 1563, 1563, 43 N.Y.S.3d 843 [4th Dept.2016] ). In appeal No. 1, defendant appeals from the resulting judgment of foreclosure and sale. Defendant's sole contention on appeal is that the court should have denied plaintiff's motion because the referee appointed to ascertain and compute the amount due to plaintiff did not conduct a fact-finding hearing or provide notice of such a hearing to defendant. That contention, however, is improperly raised for the first time on appeal (see Biro v. Keen, 153 A.D.3d 1571, 1572, 61 N.Y.S.3d 750 [4th Dept.2017] ; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept.1994] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
CENTRA, J.P., PERADOTTO, CARNI, DeJOSEPH, and WINSLOW, JJ., concur.