Opinion
2018-00308 Index No. 68032/14
12-04-2019
PROF-2013-S3 LEGAL TITLE TRUST, etc., respondent, v. Evan SANTO, et al., appellants, et al., defendants.
Galarza Law Office P.C., Massapequa Park, N.Y. (Charles W. Marino of counsel), for appellants. Fein, Such & Crane, LLP, Westbury, N.Y. (Michael S. Hanusek of counsel), for respondent.
Galarza Law Office P.C., Massapequa Park, N.Y. (Charles W. Marino of counsel), for appellants.
Fein, Such & Crane, LLP, Westbury, N.Y. (Michael S. Hanusek of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.
This action to foreclose a mortgage was commenced against, among others, the defendants Evan Santo and Concetta Santo (hereinafter together the defendants). The defendants interposed an answer. In an order, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint and to strike the defendants' answer, upon the defendants' default in opposing the motion. Subsequently, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated July 3, 2017, the Supreme Court denied the defendants' motion.
The plaintiff moved for a judgment of foreclosure and sale, and the defendants cross-moved, inter alia, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action. In an order and judgment of foreclosure and sale (one paper), the Supreme Court, inter alia, denied the defendants' cross motion and directed the sale of the subject property. The defendants appeal.
We agree with the Supreme Court's denial of the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. The defendants' motion was procedurally improper. The granting of a summary judgment motion is the "procedural equivalent of a trial" ( Falk v. Goodman, 7 N.Y.2d 87, 91, 195 N.Y.S.2d 645, 163 N.E.2d 871 ; see Engel v. Aponte, 51 A.D.2d 989, 990, 380 N.Y.S.2d 739 ). Since the plaintiff's motion, among other things, for summary judgment on the complaint and to strike the defendants' answer had been granted upon the defendants' default in opposing the motion, the defendants' recourse was to move pursuant to CPLR 5015(a) to vacate that order. The defendants could not circumvent the Supreme Court's grant of the summary judgment motion upon their default in opposing the motion by merely ignoring that determination and moving for summary judgment dismissing the complaint insofar as asserted against them. Moreover, the defendants' motion and subsequent cross motion were properly denied on the merits, also.
RIVERA, J.P., AUSTIN, LEVENTHAL and IANNACCI, JJ., concur.