| CNB Realty v Stone Cast, Inc. |
| 2015 NY Slip Op 03209 [127 AD3d 1438] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| CNB Realty as Assignee of NBT Bank, NationalAssociation, Respondent, v Stone Cast, Inc., et al., Appellants, et al.,Defendants. |
Eugene Cunningham, Glens Falls, for appellants.
Burgess & Associates, PC, Clifton Park (Peter Burgess of counsel), forrespondent.
Peters, P.J. Appeal from an order of the Supreme Court (Krogmann, J.), enteredFebruary 13, 2013 in Washington County, which, among other things, denied a motionby defendants Stone Cast, Inc. and Mark Galvin to vacate a judgment of foreclosure.
In 2003, defendant Stone Cast, Inc. executed a note in favor of Central NationalBank that was guaranteed by Stone Cast's president, defendant Terry Karanikas, andsecured by a mortgage on real property located in the Village of Fort Edward,Washington County. Plaintiff, an assignee of the mortgage, commenced this foreclosureaction in November 2008 against, among others, Stone Cast, Karanikas and defendantMark Galvin, who holds a subordinate mortgage on the subject property. After thesedefendants answered, plaintiff moved for summary judgment striking their answers andreferring the matter to a referee to compute the amount due. Said defendants did notoppose the motion, which Supreme Court granted,[FN1] and a judgment of foreclosure wasentered in May 2009. Two years later, Galvin and Stone Cast (hereinafter collectivelyreferred to as defendants) moved to vacate the judgment of foreclosure and stay the salepursuant to CPLR 5015 (a). In response, plaintiff moved for an award of counsel fees.[*2]Supreme Court denied the motion to vacate thejudgment of foreclosure and awarded counsel fees to plaintiff. Defendants now appeal,and we affirm.
Supreme Court properly declined to vacate the judgment of foreclosure pursuant toCPLR 5015 (a) (4).[FN2] In seeking to vacate the judgment forlack of jurisdiction, defendants argue that plaintiff lacked standing to bring thisforeclosure action inasmuch as it failed to establish that the note and mortgage had beenvalidly assigned to it. Such standing challenge, however, was waived by defendants'failure to raise it as an affirmative defense in their respective answers or in a pre-answermotion to dismiss (see HSBCBank USA N.A. v Pacyna, 112 AD3d 1246, 1247 [2013]; Marcon Affiliates, Inc. vVentra, 112 AD3d 1095, 1095-1096 [2013]; HSBC Bank USA, N.A. v Ashley, 104 AD3d 975, 975-976[2013], lv dismissed 21 NY3d 956 [2013]). In any event, inasmuch as lack ofstanding does not implicate subject matter jurisdiction, it would not establish a basis forvacatur pursuant to CPLR 5015 (a) (4) (see Marcon Affiliates, Inc. v Ventra, 112AD3d at 1096; HSBC Bank USA, N.A. v Ashley, 104 AD3d at 976).
Defendants' additional contention that plaintiff failed to support its application for adefault judgment with sufficient proof of the facts constituting its foreclosure claim, asrequired by CPLR 3215 (f), does not allege a jurisdictional defect that would render thejudgment of foreclosure a nullity (see Manhattan Telecom. Corp. v H & A Locksmith, Inc.,21 NY3d 200, 202 [2013]; HSBC Bank USA N.A. v Pacyna, 112 AD3d at1247).
Garry, Rose and Lynch, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1:Supreme Court alsogranted a default judgment in favor of plaintiff against the other named defendants, whodid not appear.
Footnote 2:Although, in theirmotion, defendants advanced additional grounds upon which to vacate the judgment offoreclosure pursuant to CPLR 5015, they abandoned those arguments by failing to raisethem in their brief (see HSBCBank USA, N.A. v Ashley, 104 AD3d 975, 975 n [2013], lv dismissed21 NY3d 956 [2013]).