| Citibank, N.A. v Swiatkowski |
| 2012 NY Slip Op 05905 [98 AD3d 555] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Citibank, N.A., Respondent, v Michael Swiatkowski,Defendant, and Lidia Swiatkowski, Appellant. |
—[*1] Katz & Rychik, P.C., New York, N.Y. (Bennett R. Katz of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Lidia Swiatkowski appeals from an orderof the Supreme Court, Nassau County (Adams, J.), dated February 17, 2011, which denied thedefendants' motion, inter alia, pursuant to CPLR 5015 (a) to vacate a judgment of the same court(Jonas, J.), entered against the defendants on October 13, 2005.
Ordered that the order is affirmed, with costs.
In this mortgage foreclosure action, a judgment of foreclosure and sale was entered againstthe defendants on October 13, 2005. The defendants then filed numerous successive bankruptcypetitions, staying the proceedings. After the United States Bankruptcy Court for the EasternDistrict of New York vacated the automatic stay with respect to the premises that are the subjectof this action, the defendants moved to vacate the judgment of foreclosure and sale pursuant toCPLR 5015 (a), for a stay of the sale of the premises, and for other relief. The defendants arguedthat the plaintiff did not have standing to commence the action due to deficiencies in the chain ofmortgage assignments. The Supreme Court denied the motion. The defendant Lidia Swiatkowskiappeals. We affirm.
"In order to commence a foreclosure action, the plaintiff must have a legal or equitableinterest in the mortgage" (Aurora LoanServs., LLC v Weisblum, 85 AD3d 95, 108 [2011]). "In a mortgage foreclosure action, aplaintiff has standing where it is both the holder or assignee of the subject mortgage and theholder or assignee of the underlying note at the time the action is commenced" (Bank of N.Y. v Silverberg, 86 AD3d274, 279 [2011]; see Wells FargoBank, N.A. v [*2]Marchione, 69 AD3d 204, 207[2009]). Where the issue of standing is raised by a defendant, a plaintiff must prove its standingto be entitled to relief (see Bank of N.Y. v Silverberg, 86 AD3d at 279; US Bank, N.A. v Collymore, 68 AD3d752 [2009]). A defendant waives the defense of lack of standing unless it is raised in eitherthe answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e];Matter of Fossella v Dinkins, 66 NY2d 162, 167 [1985]; Dougherty v City ofRye, 63 NY2d 989, 991 [1984]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239[2007]).
Here, the Supreme Court properly denied the defendants' motion, inter alia, to vacate thejudgment of foreclosure and sale based upon a lack of standing. The defendants did not make apre-answer motion to dismiss the complaint, and did not raise lack of standing as an affirmativedefense in their answer. Therefore, they waived their right to raise it in support of their motion(see CPLR 3211 [e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761 [2011]).
To the extent that the appellant raises issues relating to the defendants' original default on themortgage, which resulted in the entry of a judgment against the defendants in a prior action onJune 14, 1999, such contentions are not properly before this Court (see Citibank, N.A. vSwiatkowski, 98 AD3d 554 [2012] [decided herewith]). Florio, J.P., Balkin, Chambers andCohen, JJ., concur.