| PHH Mtge. Corp. v Celestin |
| 2015 NY Slip Op 05924 [130 AD3d 703] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| PHH Mortgage Corporation,Respondent, v Selwyn Celestin, Also Known as Selwyn P. Celestin, Appellant,et al., Defendant. |
Menashe & Associates, LLP, Montebello, N.Y. (Chezki Menashe and MichaelDachs of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel),for respondent.
In an action to foreclose a mortgage, the defendant Selwyn Celestin, also known asSelwyn P. Celestin, appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (Raffaele, J.), dated January 16, 2014, as denied thatbranch of his cross motion which was to dismiss the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage against the defendantSelwyn Celestin, also known as Selwyn P. Celestin (hereinafter the defendant), amongothers. After the defendant failed to appear or answer the complaint, the plaintiff movedfor leave to enter a judgment of foreclosure and sale and for an order of reference. Thedefendant opposed the motion and cross-moved, inter alia, to dismiss the complaintbased upon, among other things, the plaintiff's alleged failure to "serve the 90 daypre-foreclosure notice required under New York law," in effect, pursuant to CPLR 5015(a) to vacate his default in appearing or answering the complaint, and pursuant to CPLR3012 (d) to compel the plaintiff to accept a late answer. In the order appealed from, theSupreme Court granted the plaintiff's motion and denied the defendant's cross motion.The defendant appeals from so much of the order as denied that branch of his crossmotion which was to dismiss the complaint, arguing only that the plaintiff's submissionswere insufficient to demonstrate that it complied with the notice requirements of RPAPL1304.
The defendant's contention that the plaintiff's submissions were insufficient todemonstrate that it complied with the notice requirements of RPAPL 1304 is improperlyraised for the first time on appeal (see Federal Natl. Mtge. Assn. v Cappelli, 120 AD3d 621,622 [2014]; Mortgage Elec.Registration Sys., Inc. v Korolizky, 100 AD3d 605, 606 [2012]).
In any event, the defendant is precluded from raising this issue. The defendant doesnot appeal from so much of the order as denied the branch of his cross motion whichwas, in effect, [*2]pursuant to CPLR 5015 (a) to vacatehis default in appearing or answering the complaint. Since the defendant has failed toestablish that he is entitled to an order vacating his default in appearing or answering thecomplaint and compelling the plaintiff to accept a late answer, he is precluded fromraising the plaintiff's alleged failure to comply with the notice provisions of RPAPL 1304as a defense to this action (seegenerally Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676 [2015]; TD Bank, N.A. v Spector, 114AD3d 933, 933-934 [2014]; Pritchard v Curtis, 101 AD3d 1502, 1504 [2012]). Skelos,J.P., Hall, Sgroi and Barros, JJ., concur.