Marie Delsante, Respondent, v. 255 West 4th Street Realty Corp., Appellant, et al., Defendants

Marie Delsante, Respondent, v 255 West 4th Street Realty Corp., Appellant, et al., Defendants. [614 NYS2d 903] [MAJORITY] Appeal from the order and judgment (one paper), Supreme Court, New York County (David H. Edwards, Jr., J.), entered January 23, 1991, which denied defendant’s motion for summary judgment and granted plaintiffs cross-motion for summary judgment, and appeal from a judgment of foreclosure and sale (Seymour Schwartz, J.), entered March 4, 1993, as modified on December 8, 1993, unanimously dismissed as untimely, with costs. Defendant-appellant did not timely file a notice of appeal from either the order/judgment or judgment from which it purports to appeal notwithstanding that it concedes that, in both instances, it received service with notice of entry thereof long before the notices of appeal were ever submitted. Although defendant attempts to blame plaintiff for the delay, neither CPLR 5514 (b) nor CPLR 321 (c) provides justification for its failure to act in a timely manner. Were this Court to consider defendant’s arguments, we would find them to be entirely without merit since it is undisputed that defendant is in default, and it has, moreover, not offered the semblance of a substantive defense to the foreclosure action. As for defendant’s dissatisfaction with the 15% rate of interest applied by the Referee, the IAS Court properly found the mortgage modification agreement provided for such rate in the event of default and acceleration. There is, similarly, no merit to defendant’s other contentions. Concur —Sullivan, J. P., Rosenberger, Ross, Williams and Tom, JJ.