| Marcon Affiliates, Inc. v Ventra |
| 2013 NY Slip Op 08311 [112 AD3d 1095] |
| December 12, 2013 |
| Appellate Division, Third Department |
| Marcon Affiliates, Inc., Respondent, v Thomas Ventra,Appellant, et al., Defendants. |
—[*1] Kozeny, McCubbin & Katz, LLP, Melville (Douglas S. Thaler of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Dowd, J.), entered January 30,2012 in Chenango County, which denied defendant Thomas Ventra's motion to vacate ajudgment of foreclosure and sale.
In September 2007, defendant Thomas Ventra (hereinafter defendant) executed apromissory note in favor of James D. Trefz that was secured by a mortgage on propertylocated in the City of Norwich, Chenango County. Defendant paid the first installmentagainst this obligation and then, by his own admission, ceased to make any furtherpayments. Trefz assigned the note and mortgage to plaintiff, and plaintiff commencedthis foreclosure action. Following service of defendant's answer, plaintiff moved forsummary judgment and Supreme Court granted the motion.[FN*] Defendant moved to vacate the judgment of foreclosure and sale. He now appeals fromSupreme Court's order denying this motion, and we affirm.
Defendant established no grounds for vacatur of the judgment (see CPLR5015). [*2]Plaintiff established that it was the assignee ofthe note and mortgage when the action was commenced (see Deutsche Bank Natl. Trust Co.v Whalen, 107 AD3d 931, 932 [2013]). Defendant's claims regarding plaintiff'salleged lack of authority raise issues of standing and were thus waived by defendant'sfailure to assert them as affirmative defenses in the answer or in a timely pre-answermotion (see Capital One, N.A. vKnollwood Props. II, LLC, 98 AD3d 707, 708 [2012]; CitiMortgage, Inc. vRosenthal, 88 AD3d 759, 761 [2011]; Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805,805 [2009]). Further, even if these arguments had merit, they would not establish a basisfor vacatur pursuant to CPLR 5015 (a) (4), as subject matter jurisdiction is not implicated(see HSBC Bank USA, N.A. vAshley, 104 AD3d 975, 975-976 [2013], lv dismissed 21 NY3d 956[2013]).
Defendant asserted as an affirmative defense that Trefz was in fact responsible forthe default, as he failed to make an agreed-upon payment to defendant pursuant to aseparate contract. However, the obligation to make this payment was not a term of thenote and mortgage; thus, this alleged breach by Trefz does not constitute a defense todefendant's default.
The record establishes that the property at issue is a commercial office building, anddefendant makes no claim that it is his home or has ever been used for residentialpurposes. Thus, he is not entitled to a settlement conference or the other protectionsaccorded to homeowners in residential foreclosures (see CPLR 3408; RPAPL1304; 22 NYCRR 202.12-a; seealso Emigrant Mtge. Co., Inc. v Turk, 71 AD3d 721, 721 [2010]), nor would thefailure to conduct such a conference, even if required, give rise to a claim for vacatur bydepriving the court of subject matter jurisdiction (see Pritchard v Curtis, 101 AD3d 1502, 1504 [2012]).Finally, we find no abuse of discretion by Supreme Court in excusing plaintiff's briefdelay in filing papers in opposition to the motion (see CPLR 2004; Matter of Burkich, 12 AD3d755, 756 [2004]). Defendant's remaining contentions have been examined and foundto be waived or without merit.
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Defendant wasrepresented by counsel when his answer was served, but acted pro se thereafter.