| Wells Fargo Bank, NA v Edwards |
| 2012 NY Slip Op 03960 [95 AD3d 692] |
| May 22, 2012 |
| Appellate Division, First Department |
| Wells Fargo Bank, NA, Respondent, v Sheila Edwards,Appellant, et al., Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview (Edward Rugino of counsel), forrespondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 26, 2010, whichdenied defendant Sheila Edwards's cross motion to dismiss the summons and complaint on theground of lack of personal jurisdiction based upon improper service, and granted plaintiff'smotion for a judgment of foreclosure and sale, to confirm the referee's report and for attorneys'fees, unanimously affirmed, without costs.
The court properly found that defendant's allegations were insufficient to rebut plaintiff'sprima facie showing of proper service. Defendant's denial of service did not controvert theveracity or content of the affidavit of service so as to require a traverse hearing (see generally NYCTL 1998-1 Trust & Bankof N.Y. v Rabinowitz, 7 AD3d 459, 460 [2004]). In addition, her correspondence to hermortgage loan servicer made shortly after the date of service, indicating that she sought torecommence payment of her mortgage in order to suspend the pending foreclosure action underthe instant index number, contradicted her claim that she was not served with the summons andcomplaint.
Contrary to defendant's contention, the court did not err in determining that she waived theissue of standing by failing to timely appear or answer (see CPLR 3211 [a] [3]; [e]). Inany event, the action was expressly maintained in plaintiff's capacity as trustee under a poolingand servicing agreement dated October 1, 2006, before the date of the commencement of theaction (see CWCapital Asset Mgt. LLCv Charney-FPG 114 41st St., LLC, 84 AD3d 506 [2011]).
We have considered defendant's remaining contentions and find them unavailing.Concur—Tom, J.P., Sweeny, Renwick, Freedman and Abdus-Salaam, JJ.