Martello v. Martello ( 2023 )

Martello v Martello (2023 NY Slip Op 04201)

Martello v Martello

2023 NY Slip Op 04201

Decided on August 9, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 9, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
BARRY E. WARHIT, JJ.

2020-05694
(Index No. 2035/17)

[*1]Michael Martello, appellant,

v

Jonathan Martello, et al., respondents.

Michael Martello, Levittown, NY, appellant pro se.

Akerman LLP, New York, NY (James Ng and Jordan M. Smith of counsel), for respondent Green Tree Servicing, LLP, now known as Ditech Mortgage Corp.

DECISION & ORDER

In an action for the partition and sale of real property, the plaintiff appeals from an interlocutory judgment of the Supreme Court, Nassau County (Anna R. Anzalone, J.), entered December 1, 2020. The interlocutory judgment, insofar as appealed from, upon an order of the same court entered February 13, 2020, granting the motion of the defendant Jonathan Martello to confirm a referee's report dated October 13, 2019, and for leave to enter an interlocutory judgment, directed that the defendant Greentree Servicing, LLC, now known as Ditech Mortgage Corp., holds a lien on the subject real property, directed that the subject real property be sold at auction, and directed that the defendant Jonathan Martello is entitled to reimbursement from the plaintiff in the sum of $50,971.72, of which $40,023.19 is to be deducted from the sale proceeds due to the plaintiff.

ORDERED that on the Court's own motion, the notice of appeal from the order is deemed to be a premature notice of appeal from the interlocutory judgment (see CPLR 5520[c]); and it is further,

ORDERED that the interlocutory judgment is affirmed insofar as appealed from, with costs payable to the defendant Greentree Servicing, LLC, now known as Ditech Mortgage Corp.

The plaintiff commenced this action for the partition and sale of certain real property. A referee was appointed to ascertain and report the rights and interests of the parties to the property, and to report whether the property should be partitioned or sold. Following a hearing, the referee issued a report. The defendant Jonathan Martello moved to confirm the referee's report and for leave to enter an interlocutory judgment. The plaintiff opposed the motion. In an order entered February 13, 2020, the Supreme Court granted the motion. An interlocutory judgment entered December 1, 2020, among other things, directed that the defendant Greentree Servicing, LLC, now known as Ditech Mortgage Corp. (hereinafter Ditech), holds a lien on the property, directed that the property be sold at auction, and directed that the defendant Jonathan Martello is entitled to reimbursement from the plaintiff in the sum of $50,971.72, of which $40,023.19 is to be deducted from the sale proceeds due to the plaintiff. The plaintiff appeals.

The plaintiff's contentions challenging Ditech's standing to foreclose the subject mortgage, its compliance with RPAPL foreclosure notice requirements, and its proof of default in [*2]payment of the loan are without merit, as this is not an action to foreclose a mortgage, but an action for the partition and sale of the property (see generally JP Morgan Chase Bank, NA v Levin, 161 AD3d 966, 967; Zuniga v BAC Home Loans Servicing, L.P., 147 AD3d 882, 884; Jahan v U.S. Bank N.A., 127 AD3d 926, 927).

The plaintiff's remaining contentions are either not properly before us or without merit.

DILLON, J.P., MALTESE, WOOTEN and WARHIT, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court