| HSBC Bank USA, NA v Schwartz |
| 2011 NY Slip Op 07608 [88 AD3d 961] |
| October 25, 2011 |
| Appellate Division, Second Department |
| HSBC Bank USA, NA, as Trustee for the Registered Holders ofAce Securities Corp., Home Equity Loan Trust, Series 2004-FM2,Respondent, v Samuel Schwartz, Appellant, et al.,Defendants. |
—[*1] Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Samuel Schwartz appeals, as limited byhis brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), enteredJuly 14, 2009, as granted that branch of the plaintiff's motion which was for summary judgmenton the complaint insofar as asserted against him and to dismiss his answer and counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment on the complaint insofar as asserted against the appellant and to dismiss hisanswer and counterclaims. The plaintiff established its prima facie entitlement to judgment as amatter of law by submitting a mortgage, an unpaid note, and an affidavit of its employee, whoaverred that she reviewed the relevant papers and attested to the appellant's default (see JP Morgan Chase Bank, N.A. vAgnello, 62 AD3d 662, 663 [2009]; Coppa v Fabozzi, 5 AD3d 718 [2004]; EMC Mtge. Corp. vRiverdale Assoc., 291 AD2d 370 [2002]). In opposition, the appellant failed to raise a triableissue of fact.
Contrary to the appellant's contention, he waived the defense of lack of standing, havingfailed to interpose an answer which asserted the defense or to file a timely pre-answer motionraising that defense (see US Bank N.A.v Eaddy, 79 AD3d 1022 [2010]; Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817-818[2010], cert denied 562 US —, 131 S Ct 648 [2010]; Deutsche Bank Natl. Trust Co. vJackson, 68 AD3d 805 [2009]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625[2009]; HSBC Bank, USA vDammond, 59 AD3d 679 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244[2007]).
The appellant's remaining contention is without merit. Angiolillo, J.P., Leventhal, Austin andRoman, JJ., concur.