Opinion
No. 2020-02594 Index No. 11840/09
03-29-2023
Nationstar Mortgage, LLC, respondent, v. Jilani Warsi, appellant, et al., defendants.
Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for appellant. LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.
Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for appellant.
LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, LARA J. GENOVESI, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Jilani Warsi appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated January 15, 2020. The order, upon the failure of the defendant Jilani Warsi to appear at a hearing to determine the validity of service of process, in effect, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate (1) an order of reference of the same court (James G. Golia, J.) entered December 7, 2009, (2) an order of the same court (Leonard Livote, J.) entered July 6, 2015, granting the plaintiff's unopposed motion, inter alia, for a judgment of foreclosure and sale, and (3) an order and judgment of foreclosure and sale (one paper) of the same court entered December 20, 2016, and thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
ORDERED that the appeal is dismissed, with costs, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511).
No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511). Here, contrary to the appellant's contention, his failure to appear at the hearing to determine the validity of service of process constituted a default. As such, the appeal must be dismissed (see generally Matter of Rigali v Kogan, 204 A.D.3d 919, 920; Matter of Jones v Spain, 188 A.D.3d 1209, 1209).
BRATHWAITE NELSON, J.P., WOOTEN, GENOVESI and WARHIT, JJ., concur.
DECISION & ORDER ON MOTION
Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Queens County, dated January 15, 2020, on the ground that the appellant is not aggrieved by the order. By decision and order on motion of this Court dated March 29, 2021, that branch of the motion which is 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 the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branch of the motion which is to dismiss the appeal is denied as academic in light of our determination of the appeal from the order dated January 15, 2020.
BRATHWAITE NELSON, J.P., WOOTEN, GENOVESI and WARHIT, JJ., concur.