| Bayview Loan Servicing, LLC v Bernard |
| 2015 NY Slip Op 06202 [130 AD3d 850] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1](July 22, 2015)
| Bayview Loan Servicing, LLC,Appellant, v Jean Bernard et al., Defendants. |
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Lijue T. Philip andAndrew Morganstern of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from so much of an orderof the Supreme Court, Kings County (Saitta, J.), dated September 22, 2014, as, uponreargument, adhered to its prior determination in an order dated August 6, 2013, denyingthat branch of its unopposed motion which was for an order of reference.
Ordered that the order dated September 22, 2014, is reversed insofar as appealedfrom, on the law, without costs or disbursements, upon reargument, the determination inthe order dated August 6, 2013, denying that branch of the plaintiff's motion which wasfor an order of reference is vacated, and that branch of the plaintiff's motion isgranted.
The Supreme Court erred, upon reargument, in adhering to its original determinationdenying that branch of the plaintiff's unopposed motion which was for an order ofreference. The defendants failed to answer the complaint within the time allowed, and theplaintiff demonstrated its entitlement to an order of reference by submitting, in support ofits unopposed motion, the mortgage, the note, and affidavits from its employees attestingto the default (see HSBC BankUSA, N.A. v Taher, 104 AD3d 815, 816 [2013]; Aurora Loan Servs., LLC vShahmela Shah Sookoo, 92 AD3d 705, 707 [2012]).
It was also error for the Supreme Court to raise the issue of the plaintiff's standingsua sponte. Since the defendants did not answer the complaint, and did not make apre-answer motion to dismiss the complaint, they waived the defense of lack of standing(see HSBC Bank USA, N.A. vSimmons, 125 AD3d 930, 932 [2015]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d821, 822 [2014]) in connection with that branch of the plaintiff's motion which wasfor an order of reference. Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.