| HSBC Bank USA N.A. v Pacyna |
| 2013 NY Slip Op 08562 [112 AD3d 1246] |
| December 26, 2013 |
| Appellate Division, Third Department |
| HSBC Bank USA, National Association, as Trustee for AceSecurities Corporation Home Equity Loan Trust, Series 2004-FM1 Asset BackedPass-Through Certificates, Respondent, v Linda Pacyna et al.,Appellants. |
—[*1] Kozeny, McCubbin & Katz, LLP, Melville (Henry P. DiStefano of counsel), forrespondent.
Rose, J.P. Appeal from an order of the Supreme Court (Krogmann, J.), enteredNovember 30, 2011 in Warren County, which, among other things, denied defendants'cross motion to, among other things, vacate a judgment of foreclosure and sale.
Defendant Linda Pacyna executed a note and a mortgage encumbering her residencein 2003 and, after she defaulted in 2007, plaintiff commenced this foreclosure action.When defendants failed to answer, Supreme Court granted plaintiff's motion for a defaultjudgment and the real property was subsequently sold at a referee's sale to plaintiff.Defendants then moved for a stay of the proceedings on the ground that they were neverserved with the summons and complaint. When plaintiff failed to oppose the motion,Supreme Court granted the stay. Plaintiff eventually moved to vacate its default on themotion and lift the stay, and defendants cross-moved to dismiss the action on groundsthat they had not been served and that the paperwork supporting the action wasfraudulent. Supreme Court held a traverse hearing, found that personal service had beenmade upon defendants, denied the motion to dismiss the judgment of [*2]foreclosure and sale, and vacated the stay.
On appeal, defendants contend that they were treated unfairly at the traverse hearingbecause of their pro se status. We cannot agree. Pro se litigants are accorded no greaterrights than any other litigants (see Davis v Mutual of Omaha Ins. Co., 167 AD2d714, 716 [1990]; Roundtree v Singh, 143 AD2d 995, 996 [1988]). Here, therecord makes clear that Supreme Court's conduct toward defendants at the hearing waseven-handed and fair. Further, we can find no basis to disturb the court's acceptance ofthe testimony of the process server and its conclusion that personal jurisdiction wasobtained (see Matter of DeMeov City of Albany, 63 AD3d 1272, 1272-1273 [2009]; Psathas v CatskillRegional Off-Track Betting Corp., 173 AD2d 1070, 1071 [1991]).
As for defendants' argument that plaintiff lacked standing to bring the action, theywaived this defense by failing to assert it in an answer or a timely pre-answer motion todismiss (see CPLR 3018 [b]; 3211 [e]; Matter of Fossella v Dinkins, 66NY2d 162, 168 [1985]; HSBCBank USA, N.A. v Ashley, 104 AD3d 975, 975-976 [2013], lvdismissed 21 NY3d 956 [2013]). In any event, defendants do not deny that Pacynasigned the note and mortgage obligating her to make regular payments, but she failed todo so. Documents in the record reflect that a loan modification was entered into prior tothe action being commenced, defendants were unable to stay current on the paymentsand, after commencement of the action, they did not accept modified terms that wereoffered prior to the sale. Further, defendants' contention that plaintiff's papers do notcomply with CPLR 3215 (f) does not allege a jurisdictional defect (see Manhattan Telecom. Corp. v H& A Locksmith, Inc., 21 NY3d 200, 202 [2013]), and their allegations of fraudare unsubstantiated (see ChaseHome Fin., LLC v Miciotta, 101 AD3d 1307, 1308 [2012]; Rizzo v St. Lawrence Univ.,24 AD3d 983, 984 [2005]; Aames Capital Corp. v Davidsohn, 24 AD3d 474, 475[2005]).
Finally, defendants argue that Supreme Court improperly vacated the stay becauseplaintiff designated its motion as one to reargue and, as such, it was untimely. It is clear,however, that plaintiff did not appear or submit papers opposing defendants' motion for astay. Accordingly, its subsequent motion is more accurately described as one to vacate itsdefault in failing to oppose defendants' motion. Supreme Court accepted plaintiff'sexcuse for the default and, finding no basis to defendants' claims regarding service orfraud, vacated the stay. Given the record before us, Supreme Court did not abuse itsdiscretion (see Citicorp Mtge. v Rodelli, 249 AD2d 736, 738 [1998]).Defendants' remaining contentions have been considered and found to be without merit.
Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.