Caerus Terra Props., LLC v. Sulton

Caerus Terra Props., LLC v Sulton (2019 NY Slip Op 08818)

Caerus Terra Props., LLC v Sulton

2019 NY Slip Op 08818

Decided on December 11, 2019

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 December 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
VALERIE BRATHWAITE NELSON, JJ.

2018-09614
(Index No. 2842/16)

[*1]Caerus Terra Properties, LLC, respondent,

v

Andre Sulton, appellant, et al., defendants.

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.

Michael T. Sucher, Brooklyn, NY (Andrew M. Shabasson of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Andre Sulton appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Mark I. Partnow, J.), dated May 10, 2018. The judgment of foreclosure and sale, upon an order of the same court dated January 10, 2017, denying the motion of the defendant Andre Sulton to vacate an order of the same court dated May 11, 2016, and granting the plaintiff's cross motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, inter alia, confirmed the referee's report and directed the sale of the subject property.

Motion by the respondent to dismiss the appeal from the judgment on the ground that the appellant waived his right to appeal by accepting the benefit of the judgment. By decision and order on motion of this Court dated May 2, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

DECISION & ORDER

Separate motion by the respondent for leave to renew its prior motion to dismiss the appeal from the judgment on the ground that the appellant waived his right to appeal by accepting the benefit of the judgment. By decision and order on motion of this Court dated July 25, 2019, the motion 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 motions and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the motion for leave to renew the prior motion to dismiss the appeal is granted, upon renewal, the motion to dismiss the appeal is granted; and it is further,

ORDERED that the appeal from the judgment is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

Pursuant to the judgment of foreclosure and sale from which the defendant mortgagor Andre Sulton appeals, the subject property was sold at a public auction. Sulton was the successful [*2]bidder at the public auction. By deed dated May 16, 2019, the referee conveyed the property to Sulton. By accepting the benefits of the judgment from which the appeal is taken, Sulton waived his right to appeal (see Cohen v Cohen , 3 NY2d 339; Bazerman v Gan-Thi Enters. , 189 AD2d 744; Lieblich v Solomon , 7 AD2d 638). Accordingly, the appeal from the judgment of foreclosure and sale must be dismissed.

SCHEINKMAN, P.J., RIVERA, CHAMBERS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court