Opinion
2016–10251 Index No. 5207/12
12-04-2019
HUDSON CITY SAVINGS BANK, Respondent, v. David BERRY, et al., Appellants, et al., Defendants.
DECISION & ORDER ORDERED that the judgment of foreclosure and sale is affirmed, with costs.
In 2008, the defendants David Berry and Brenda E. Berry (hereinafter together the defendants) obtained a loan from the plaintiff in the principal sum of $420,000, which was secured by a mortgage on the subject premises. The defendants defaulted on the loan in February 2012, and in July 2012 the plaintiff commenced this action to foreclose the mortgage. By order dated September 8, 2014, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. On November 3, 2014, the court denied the defendants' motion for leave to reargue and renew their opposition to those branches of the plaintiff's motion. On prior appeals by the defendants, this Court affirmed the order dated September 8, 2014, insofar as appealed from and affirmed the order dated November 3, 2014, insofar as reviewed (see Hudson City Sav. Bank v. Berry, 138 A.D.3d 778, 28 N.Y.S.3d 332 ).
The defendants' contentions on this appeal which were raised or could have been raised in the prior appeals in this action either are barred by the doctrine of law of the case or have been waived (see Czernicki v. Lawniczak, 103 A.D.3d 769, 770, 962 N.Y.S.2d 166 ; Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 920 N.Y.S.2d 144 ; Stokes v. County of Suffolk, 63 A.D.2d 645, 645–646, 404 N.Y.S.2d 378 ). The defendants' remaining contentions are without merit.
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.
DECISION & ORDER ON MOTION
2016–10251
Hudson City Savings Bank, respondent,
v.
David Berry, et al., appellants, et al., defendants.
(Index No. 5207/12)
Motion by the plaintiff to dismiss an appeal from a judgment of foreclosure and sale of the Supreme Court, Dutchess County, dated August 18, 2016, on the ground that the appeal is barred by the doctrine of res judicata. By decision and order on motion of this Court dated October 2, 2017, 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 motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion is denied.
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.