| Freedom Mtge. Corp. v Toro |
| 2014 NY Slip Op 00479 [113 AD3d 815] |
| January 29, 2014 |
| Appellate Division, Second Department |
| Freedom Mortgage Corporation,Appellant, v Rosita Toro et al., Defendants, et al.,Nonparties. |
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In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Solomon, J.), dated December 9, 2011, which denied,without prejudice, its unopposed motion for the appointment of a referee to compute theamounts due and owing to it, and for related relief.
Ordered that the order is affirmed, without costs or disbursements.
After the defendant mortgage debtor, Rosita Toro (hereinafter the debtor), defaultedin appearing in this foreclosure action, the plaintiff moved for the appointment of areferee to compute the amounts due and owing to it, and for related relief. The debtor didnot oppose the plaintiff's motion.
The Supreme Court denied the plaintiff's motion, without prejudice, on the groundthat the plaintiff's papers contained an acknowledgment of the assignment of the note andmortgage by an out-of-state notary, and an affidavit attesting to the debtor's default inrepaying the mortgage loan that was notarized by an out-of-state notary, both withoutcertificates of conformity. The plaintiff appeals.
It appears from this record that the plaintiff was the holder of the mortgage and note.In any event, by failing to appear in the action, the debtor waived the defense of lack ofstanding (see HSBC Bank USA,N.A. v Taher, 104 AD3d 815, 817 [2013]). However, the affidavit attesting tothe debtor's default in repaying the mortgage loan did not comply with CPLR 2309 (c).Under the circumstances of this case, the Supreme Court did not improvidently exerciseits discretion in denying relief to the movant without prejudice.
In view of the foregoing, we affirm the order appealed from. Skelos, J.P., Lott,Cohen and Hinds-Radix, JJ., concur.