| Southstar III, LLC v Enttienne |
| 2014 NY Slip Op 06195 [120 AD3d 1332] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Southstar III, LLC, Respondent, v CarolEnttienne, Also Known as Carol Entienne, et al., Appellants, et al.,Defendants. |
Rubin & Licatesi, P.C., Garden City, N.Y. (Amy J. Zamir of counsel), forappellants.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Kenneth Sheehan ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Carol Enttienne and NicholasPile appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Saitta, J.), dated March 6, 2013, as denied their motion pursuant to CPLR3211 (a) (2) to dismiss the complaint insofar as asserted against them on the ground thatthe plaintiff lacked standing to commence the action.
Ordered that the order is affirmed insofar as appealed from, with costs.
In April 2008, the plaintiff commenced this action to foreclose a mortgage. Thedefendants Carol Enttienne and Nicholas Pile (hereinafter together the defendants) failedto timely appear or answer the complaint (see CPLR 320 [a]). In April 2011, thedefendants moved to dismiss the complaint insofar as asserted against them on theground that the plaintiff lacked standing to commence the action. In the order appealedfrom, the Supreme Court, among other things, denied the defendants' motion.
Since the defendants did not answer the complaint and did not make a pre-answermotion to dismiss the complaint, they waived the defense of lack of standing (see Bank of N.Y. v Cepeda,120 AD3d 451 [2d Dept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d821 [2014]; Freedom Mtge.Corp. v Toro, 113 AD3d 815 [2014]). Prior to making their instant motion todismiss the complaint on the ground that the plaintiff lacked standing, the defendants didnot seek an extension of time to answer or appear in this action (see CPLR 3012[d]), or request an extension of time within which to serve and file a pre-answer motionpursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them.Further, they did not attempt to show good cause for their delay, or even address thetimeliness of their motion (see CPLR 2004).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion to dismissthe complaint insofar as asserted against them on the ground that the plaintiff lackedstanding to commence the action (cf. U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-695[2012]; Holubar v Holubar,89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d 624 [2010]). Balkin, J.P.,Leventhal, Maltese and LaSalle, JJ., concur.