| U.S. Bank N.A. v Dellarmo |
| 2015 NY Slip Op 03828 [128 AD3d 680] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association,Respondent, v Joseph Dellarmo, Also Known as Joseph Dell'Armo, Appellant,et al., Defendants. |
Schloss & Schloss, Airmont, N.Y. (Jonathan B. Schloss of counsel), forappellant.
Locke Lord, LLP, New York, N.Y. (R. James De Rose III of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Joseph Dellarmo, also known asJoseph Dell'Armo, appeals from an order of the Supreme Court, Rockland County(Garvey, J.), dated April 22, 2013, which denied his motion pursuant to CPLR 3211 (a)(1) and (5) to dismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
In the plaintiff's prior action to foreclose on the subject mortgage, this Court directeddismissal of the complaint insofar as asserted against the defendant Joseph Dellarmo,also known as Joseph Dell'Armo (hereinafter Dellarmo), on the ground that the plaintifffailed to establish that it had standing to commence the prior action (see U.S. Bank N.A. vDellarmo, 94 AD3d 746 [2012]). The prior action was timely commenced, and itwas not dismissed based on a voluntary discontinuance or lack of personal jurisdiction.Moreover, contrary to Dellarmo's contention, this Court's order in the prior action wasnot based on a neglect to prosecute (cf. Marrero v Crystal Nails, 114 AD3d 101 [2013]), anddid not constitute a final adjudication on the merits (see Carrick v Central Gen.Hosp., 51 NY2d 242, 251-252 [1980]; Caliguri v JPMorgan Chase Bank, N.A., 121 AD3d 1030,1031 [2014]; see also Landau,P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13-14 [2008]; Matter ofSchulz v State of New York, 81 NY2d 336, 347 [1993]). Accordingly, since theplaintiff commenced the present action to foreclose on the subject mortgage within sixmonths after this Court's decision directing dismissal of the prior action, the presentaction is not barred by the statute of limitations (see CPLR 205 [a]; Matter of Goldstein v New YorkState Urban Dev. Corp., 13 NY3d 511, 520 [2009]).
Dellarmo's contention that the instant complaint was not properly verified is notproperly before this Court, as it is raised for the first time in his appellate reply brief, towhich the plaintiff had no opportunity to respond (see US Bank N.A. v Sarmiento, 121 AD3d 187, 208[2014]; Monadnock Constr.,Inc. v DiFama Concrete, Inc., 70 AD3d 906, 908 [2010]).
Dellarmo's remaining contentions are without merit.
[*2] Accordingly, the Supreme Court properly deniedDellarmo's motion to dismiss the complaint insofar as asserted against him. Skelos, J.P.,Chambers, Maltese and Duffy, JJ., concur.