Bank of East Asia, Ltd. v. Smith

In an action, inter alia, to foreclose a mortgage, the defendants Leonard Jay Smith and Marilyn Smith appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Feuerstein, J.), dated February 23, 1994, as granted the plaintiffs motion for leave to enter a judgment of foreclosure and sale, and (2) from a judgment of foreclosure and sale of the same court, dated February 17, 1994, which is in favor of the plaintiff and against them. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the plaintiff is awarded one bill of costs. 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). 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 appellants’ contention that the plaintiff breached its duty to deal in good faith is improperly raised for the first time on appeal (see, Matter of Rockland Props. Corp. v Town of Brookhaven, 205 AD2d 518). Bracken, J. P., Pizzuto, Santucci and Friedmann, JJ., concur.