U.S. Bank N.A. v. Bogolubov

U.S. Bank N.A. v Bogolubov (2024 NY Slip Op 04278) U.S. Bank N.A. v Bogolubov 2024 NY Slip Op 04278 Decided on August 21, 2024 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 21, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department COLLEEN D. DUFFY, J.P. PAUL WOOTEN HELEN VOUTSINAS LOURDES M. VENTURA, JJ. 2020-02041 (Index No. 4558/13) [*1]U.S. Bank National Association, etc., respondent, v Andrei Bogolubov, et al., appellants, et al., defendant. Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellants. Hinshaw & Culbertson LLP, New York, NY (Brian S. McGrath of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendants Andrei Bogolubov and Sharon Padua Bogolubov appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 23, 2019. The order and judgment of foreclosure and sale granted the plaintiff's motion, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs. In April 2013, the plaintiff commenced this action against the defendants Andrei Bogolubov and Sharon Padua Bogolubov (hereinafter together the defendants), among others, to foreclose a mortgage on certain real property located in Nassau County. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion and cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. In an order dated July 19, 2018, the Supreme Court granted the plaintiff's motion and denied the defendants' cross-motion. Thereafter, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered October 23, 2019, the court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendants appeal. The defendants' contention that the plaintiff's submissions in support of its motion, inter alia, for summary judgment were insufficient to demonstrate, prima facie, its compliance with RPAPL 1304 is improperly raised for the first time on appeal (see State of N.Y. Mtge. Agency v Costanza, 215 AD3d 990, 991; Bank of N.Y. Mellon v Glasgow, 206 AD3d 790, 790). Contrary to the defendants' contentions, the referee's findings with regard to the amount due were supported by admissible evidence in the record (see U.S. Bank, N.A. v Gendelman, [*2]214 AD3d 928, 929; Wells Fargo Bank, N.A. v Emanuel, 208 AD3d 825, 826). The parties' remaining contentions either are without merit or need not be reached in light of our determination. DUFFY, J.P., WOOTEN, VOUTSINAS and VENTURA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court