| HSBC Bank USA N.A. v Thomas |
| 2012 NY Slip Op 01180 [92 AD3d 531] |
| February 16, 2012 |
| Appellate Division, First Department |
| HSBC Bank USA N.A., Respondent, v Janet Thomas et al.,Defendants, and Maurice Thomas et al., Appellants. |
—[*1] Houser & Allison, APC, New York (Jill S. David of counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered October 8,2010, which denied defendants Maurice Thomas and Sharon Thomas's motion to vacate a defaultjudgment and a judgment of foreclosure and sale, and to stay the Referee's sale of the subjectproperty, unanimously affirmed, without costs.
The defendants in this foreclosure action include the mortgagor, Janet Thomas, and theproperty's former owners and current occupants, Maurice Thomas and Sharon Thomas. Thisappeal concerns the motion by Maurice and Sharon Thomas to vacate the judgment offoreclosure entered against them following their default on plaintiff's summary judgment motion.
While Janet Thomas defaulted by failing to answer the complaint, an answer was served onbehalf of Maurice and Sharon Thomas, by attorney Ian Belinfanti. One of the defenses asserted inthat answer was a lack of personal jurisdiction; however, inasmuch as no motion was madewithin 60 days based on improper service of process, that defense must be deemed waived(CPLR 3211 [e]). Nevertheless, Maurice and Sharon Thomas contend that the interposed answermust be disregarded and their claim that they were never served must be addressed, because IanBelinfanti was never retained or authorized to represent them.
We reject their argument. Their submissions fail to justify such a negation of the answer. Inorder to explain what occurred, they assert that Belinfanti was representing them in a separatedispute with Janet Thomas, and that when they received mail addressed to Janet Thomas, theyforwarded it to Belinfanti for him to handle; they suggest that this mail must have been thesummons and complaint, and imply that Belinfanti must have interpreted their forwarding it tohim as a retention of his services in this foreclosure action. In the face of their acknowledgmentthat Belinfanti was representing them in the dispute with Janet Thomas, their suggestionsand [*2]speculation are simply insufficient to permit any possiblefinding that Belinfanti appeared and filed an answer on their behalf without authorization.Concur—Saxe, J.P., Friedman, Freedman, Abdus-Salaam, JJ.