Opinion
2021–03603 Index No. 34223/17
05-17-2023
U.S. BANK TRUST, N.A., etc., appellant, v. Anthony STRACCI, Jr., respondent, et al. defendants.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Day Pitney LLP [Alfred W.J. Marks and Michael L. Fialkoff ], of counsel), for appellant. Smith Buss & Jacobs LLP, Yonkers, NY (Jeffrey D. Buss of counsel), for respondent.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Day Pitney LLP [Alfred W.J. Marks and Michael L. Fialkoff ], of counsel), for appellant.
Smith Buss & Jacobs LLP, Yonkers, NY (Jeffrey D. Buss of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated March 30, 2021. The order, insofar as appealed from, granted the motion of the defendant Anthony Stracci, Jr., pursuant to Real Property Law § 282 for an award of an attorney's fee, and awarded that defendant an attorney's fee in the principal amount of $6,793.60.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Anthony Stracci, Jr., pursuant to Real Property Law § 282 for an award of an attorney's fee is denied.
As set forth in a related appeal (see Nationstar Mortgage, LLC v. Stracci, 216 A.D.3d 973, 190 N.Y.S.3d 383 [decided herewith]), the Supreme Court, inter alia, granted those branches of the motion of the defendant Anthony Stracci, Jr. (hereinafter the defendant), which were to vacate a judgment of foreclosure and sale of the same court entered November 19, 2019, upon his failure to appear or answer the complaint, and to dismiss the complaint insofar as asserted against him. The defendant then moved pursuant to Real Property Law § 282 for an award of an attorney's fee. In an order dated March 30, 2021, the Supreme Court, among other things, granted the defendant's motion and awarded him an attorney's fee in the principal amount of $6,793.60. The plaintiff appeals from the order dated March 30, 2021.
In Nationstar Mortgage, LLC v. Stracci, 216 A.D.3d 973, 190 N.Y.S.3d 383, this Court determined that the Supreme Court should have denied those branches of the defendant's motion which were to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him. Since the defendant no longer is a prevailing party for the purpose of Real Property Law § 282, he is not entitled to an award of an attorney's fee for a "successful defense" of this foreclosure action ( Real Property Law § 282[1] ; see Bank of Am., N.A. v. Destino, 138 A.D.3d 654, 655, 29 N.Y.S.3d 56 ).
Accordingly, we reverse the order dated March 30, 2021, insofar as appealed from, and deny the defendant's motion pursuant to Real Property Law § 282 for an award of an attorney's fee.
DILLON, J.P., DUFFY, CHRISTOPHER and ZAYAS, JJ., concur.