20-2199-cv Windward Bora, LLC v. Yoo Mi Min

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of March, two thousand twenty-two.

PRESENT: Dennis Jacobs, Richard C. Wesley, Steven J. Menashi, Circuit Judges. ____________________________________________

IT CERTIFIED USA, INC.,

Appellant,

WINDWARD BORA, LLC

Plaintiff-Counter-Defendant,

v. No. 20-2199-cv YOO MI MIN, JI YOUN MIN, BOARD OF MANAGERS OF 1600 BROADWAY ON THE SQUARE CONDOMINIUM,

Defendants-Counter-Claimants-Appellees. * ____________________________________________

For Appellant: David M. Namm, David M. Namm, P.C., Mineola, NY.

For Defendants-Appellees: Dong Sung Kim, Kim Choi & Kim, P.C., New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Stanton, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the appeal is DISMISSED.

Plaintiff Windward Bora commenced a foreclosure action in the U.S. District

Court for the Southern District of New York against Defendants-Appellees Yoo Mi

Min, Ji Youn Min, and Board of Managers of 1600 Broadway on the Square

Condominium. The district court granted the motion of the defendants-appellees

* The Clerk of Court is directed to amend the caption as set forth above.

2 for summary judgment, and Appellant It Certified USA, Inc. appeals that

judgment.

We lack jurisdiction over this appeal. The amended notice of appeal names

It Certified as the party seeking appellate review, but It Certified is not a party to

this case. See Fed. Rule App. Proc. 3(c) (“The notice of appeal shall specify the party

or parties taking the appeal.”). Although Windward Bora notified the district court

that it had transferred its loan to It Certified, at no point did It Certified seek to

substitute itself for Windward Bora as the party-plaintiff under Federal Rule of

Civil Procedure 25(c). 1 Windward Bora, not It Certified, was therefore the party

entitled to appeal from the district court’s order granting summary judgment. See

Marino v. Ortiz,

(1988) (“The rule that only parties to a lawsuit, or

those that properly become parties, may appeal an adverse judgment, is well

settled.”); West v. Radio-Keith-Orpheum Corp.,

(2d Cir. 1934)

(L. Hand, J.) (“[I]f not a party, the putative appellant is not concluded by the

decree, and is not therefore aggrieved by it.”).

1 As the district court informed It Certified, Federal Rule of Civil Procedure 25(c) provides the “procedure for substitution of parties.” Letter to Counsel at 1, Windward Bora v. Yoo Mi Min, No. 20-CV-01133 (S.D.N.Y. June 11, 2020), ECF No. 31.

3 Naming the proper party in the notice of appeal, and doing so in a timely

fashion, form a “single jurisdictional threshold” to appellate review. Torres v.

Oakland Scavenger Co.,

(1988). Because It Certified has not met that

threshold requirement, we lack jurisdiction over this appeal. “[W]e have no appeal

from a named party in this case,” and “the failure to name the proper party taking

the appeal, within the time allotted by Rule 4, can and will result in the dismissal

of an appeal for lack of appellate jurisdiction.” Raley v. Hyundai Motor Co.,

(10th Cir. 2011) (Gorsuch, J.) (internal quotation marks and alteration

omitted).

For the foregoing reasons, we DISMISS the appeal for lack of appellate

jurisdiction.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

4