U.S. Bank Natl. Assn. v Kaufman

U.S. Bank Natl. Assn. v Kaufman

Opinion

 [**498]   [*1456]  Aarons, J.

Appeals (1) from an order of the Supreme Court (Schick, J.), entered January 18, 2019 in Sullivan County, which directed the submission of supplemental affirmations or affidavits, and (2) from an order of said court, entered May 23, 2019 in Sullivan County, which, among other things, denied plaintiff's cross motion to extend the time to serve the complaint.

In 2009, plaintiff commenced a mortgage foreclosure action against defendant Chana Kaufman (hereinafter defendant), among others, after she failed to make required payments due under the note and mortgage. This action, however, was subsequently discontinued upon plaintiff's motion. Plaintiff thereafter commenced this mortgage foreclosure action against defendant, among others, in July 2017. Defendant failed to answer the complaint and an order of reference was issued upon her default. A judgment of foreclosure [***2]  and sale was subsequently entered.

Prior to the sale, defendant, in August 2018, moved to vacate the judgment of foreclosure and sale under CPLR 5015 (a) (4). Defendant argued therein that she was never properly served with the complaint and that she "believe[d] there [was] a statute of limitations defense." In September 2018, plaintiff cross-moved under CPLR 306-b for an extension of time to effectuate service upon defendant. In a January 2019 order, Supreme Court directed that the parties submit additional papers regarding the statute of limitations issue. After consideration of the supplemental submissions, the court found that defendant established a meritorious statute of limitations defense and orally dismissed the complaint as time-barred. In a May 2019 order embodying the oral decision, the court granted defendant's  [*1457]  motion to vacate, denied plaintiff's cross motion, dismissed the complaint and discharged the subject mortgage. Plaintiff appeals from the January 2019 and May 2019 orders.

As an initial matter, no appeal lies as of right from the January 2019 order. Such order merely directed the parties to submit supplemental submissions and, by doing so, deferred the determination of the subject motions. [***3]  Given that the January 2019 order did not affect a substantial right, plaintiff's appeal from the January 2019 order must be dismissed (see Enzien v Enzien, 149 AD2d 783, 783, 539 N.Y.S.2d 576 [1989]; see generally CPLR 5701 [a] [v]).

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