| Wells Fargo Bank, N.A. v Bowie |
| 2011 NY Slip Op 08352 [89 AD3d 931] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., as Trustee for the MLMI Trust Series2005-FMI, Respondent, v Patrick Bowie et al., Defendants, and Fircy A. Nunez, on Behalf ofthe Estate of Fermina Nunez, Deceased, Appellant. |
—[*1] Steven J. Baum, P.C., Amherst, N.Y. (Casey E. Callanan and Jason B. Desiderio of counsel), forrespondent.
In an action, inter alia, to foreclose a mortgage, the defendant Fircy A. Nunez appeals, as limitedby his brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated June21, 2010, as granted that branch of the plaintiff's motion which was for summary judgment on thecomplaint insofar as asserted against him, and denied his cross motion pursuant to CPLR 3211 (a) (8)to dismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Fircy A. Nunez (hereinafter the appellant) took title to the real property at issue inthis matter, subject to the mortgage given by the defendant Patrick Bowie and held by the plaintiff. Theplaintiff subsequently brought this foreclosure action on that mortgage. The plaintiff moved, inter alia, forsummary judgment on the complaint insofar as asserted against the appellant, and the appellantcross-moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him.The Supreme Court, among other things, granted the aforementioned branch of the plaintiff's motionand denied the appellant's cross motion. The only contention asserted by the appellant on this appeal isthat the plaintiff was not entitled to summary judgment, and that the Supreme Court should havedismissed the complaint, because service upon Bowie was not properly made. The appellant, however,lacks standing to contest the validity of service upon Bowie inasmuch as that claim is personal toBowie, and thus may be raised, if at all, only by Bowie (see NYCTL 1996-1 Trust v King, 13 AD3d 429, 430 [2004];NYCTL 1996-1 Trust v King, 304 AD2d 629 [2003]; Home Sav. of Am. v Gkanios,233 AD2d 422, 423 [1996]). Accordingly, the appellant's contention affords him no basis for relief.We note that the appellant does not claim on appeal that the plaintiff did not properly serve him with thecomplaint. Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.