Capital One, N.A. v. Waterfront Realty II, LLC

In an action, inter alia, to foreclose a mortgage, the defendants Waterfront Realty II, LLC, Waterfront Realty Co., Isack Rosenberg, and Abraham Rosenberg appeal from an order of the Supreme Court, Kings County (Demarest, J.), dated March 11, 2011, which denied, without prejudice to renewal following the “submission” of certain issues to the United States Bankruptcy Court for the Eastern District of New York in a matter entitled In re Isack Rosenberg, case No. 09-46326, the plaintiffs renewed motion, among other things, for summary judgment on the complaint and to appoint a referee to compute the amount due to it, and their cross motion for leave to serve and file an amended answer. Ordered that the appeal from so much of the order as denied the plaintiffs renewed motion, among other things, for summary judgment on the complaint and to appoint a referee to compute the amount due to it is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further, [684] Ordered that the order is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the plaintiff. Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in declining to determine the merits of the appellants’ cross motion and, in effect, determining that prosecution of this matter should be stayed pending further proceedings in the United States Bankruptcy Court for the Eastern District of New York (see Honkala v Lee E. Gibson Constr. Co., Inc., 41 AD3d 655, 656 [2007]; see also Certain Underwriters at Lloyd’s London v Pneumo Abex Corp., 36 AD3d 441 [2007]; cf. Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993]). Accordingly, the Supreme Court properly denied the appellants’ cross motion without prejudice to renewal following the “submission” of certain issues to the bankruptcy court. Skelos, J.E, Leventhal, Lott and Miller, JJ., concur. Motion by the plaintiff to dismiss the appeal on the ground that it has been rendered academic. By decision and order on motion of this Court dated November 2, 2011, 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 and the papers filed in opposition thereto, and upon the submission of the appeal, it is, Ordered that the plaintiffs motion to dismiss the appeal is denied. Skelos, J.E, Leventhal, Lott and Miller, JJ., concur.