Wilmington Sav. Fund Socy., FSB v. Scaffidi

Wilmington Sav. Fund Socy., FSB v Scaffidi (2021 NY Slip Op 00378)

Wilmington Sav. Fund Socy., FSB v Scaffidi

2021 NY Slip Op 00378

Decided on January 21, 2021

Appellate Division, First 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 and Entered: January 21, 2021
Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ.

Index No. 35032/13E Appeal No. 12927 Case No. 2020-01362

[*1]Wilmington Savings Fund Society, FSB, Doing Business as Christiana Trust for PNPMS Trust, II Sued Herein as Pennymac Corp, Plaintiff-Respondent,

v

Carmelo Scaffidi, as Heir and Administrator of the Estate of Blanca Scaffidi Also Known as Blanca R. Scaffidi Also Known as Blanca Rodriguez, Defendant-Appellant, United States of America et al., Defendants.

Michael Kennedy Karlson, New York, for appellant.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore (Keith Abramson of counsel), for respondent.

Order and judgment of foreclosure and sale (one paper), Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered February 12, 2020, upon confirmation of a Referee's report, unanimously modified, on the facts, to remand for recomputation of the judgment amount consistent herewith, and otherwise affirmed, without costs.

The order that granted summary judgment to plaintiff against defendant Carmelo Scaffidi, upon reargument, was entered on defendant's default, which he never remedied (see e.g. Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557 [2d Dept 2014]). No appeal lies from an order entered on default (CPLR 5511; HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061 [2d Dept 2011]; Citibank, N.A. v Kallman, 172 AD3d 489 [1st Dept 2019]).

However, in confirming the Referee's report, the court failed to take into consideration the fact that plaintiff had agreed to forgo collection of $172,607.15 in escrow advances and $381.00 in property inspection fees. Accordingly, we remand the matter for recomputation of the judgment amount.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 21, 2021