Aurora Bank, FSB v. AFAFB, Inc.

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Woodard, J.), dated April 29, 2010, which granted that branch of the motion of the defendants 89 Pine Hollow Road Realty Corp. and Gasper Chiarenza, as co-administrator of the estate of Frank Pettineo, which was pursuant to CPLR 1003 to dismiss the complaint and denied its cross motion, inter alia, for leave to amend the complaint, and (2) a judgment of the same court dated September 28, 2010, which, upon the order, inter alia, dismissed the complaint and vacated the notice of pendency. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, [982] Ordered that one bill of costs is awarded to the respondents. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). The Supreme Court dismissed this foreclosure action on the ground that the plaintiffs mortgage was vacated and extinguished in a related case (see 89 Pine Hollow Road Realty Corp. v American Tax Fund, Foothill, 96 AD3d 995 [2012] [decided herewith]). In the related appeals, we affirm stated portions of the judgment of the Supreme Court dated September 28, 2010, which, inter alia, extinguished the plaintiffs mortgage interest (id.). Thus, we affirm the judgment herein dismissing the complaint and vacating the notice of pendency. Angiolillo, J.P., Dickerson, Austin and Cohen, JJ., concur.