| Citimortgage, Inc. v Finocchiaro |
| 2015 NY Slip Op 06489 [131 AD3d 503] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Appellant, v AngelaFinocchiaro, Respondent, et al., Defendants. |
Akerman LLP, New York, N.Y. (Jordan M. Smith and Erica R. Stein of counsel), forappellant.
Edward Delli Paoli, Staten Island, N.Y. (Judah Z. Cohen of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Richmond County (Maltese, J.), dated January 4, 2013, which grantedthe motion of the defendant Angela Finocchiaro, inter alia, in effect, pursuant to CPLR317 to vacate an order of reference of the same court, dated October 13, 2009, and ajudgment of foreclosure and sale of the same court dated March 22, 2010, upon herfailure to appear or answer the complaint, and thereupon to dismiss the complaint forlack of standing.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Angela Finocchiaro is denied.
The plaintiff commenced this action to foreclose a mortgage on real property ownedby the defendant Angela Finocchiaro (hereinafter the defendant). Upon the defendant'sfailure to appear or answer the complaint, the plaintiff moved for leave to enter a defaultjudgment. In an order dated October 13, 2009, the Supreme Court granted the motionand appointed a referee to compute the amount due the plaintiff on the note andmortgage. Thereafter, a judgment of foreclosure and sale dated March 22, 2010, wasentered. By order to show cause dated June 1, 2012, the defendant moved, inter alia, ineffect, pursuant to CPLR 317 to vacate the order of reference and the judgment offoreclosure and sale and to dismiss the complaint on the ground that the plaintiff lackedstanding because the mortgage had not been assigned to it at the time it commenced theaction. The Supreme Court concluded that the defendant had a meritorious defense,granted the motion pursuant to CPLR 317, vacated the order of reference and judgmentof foreclosure and sale, and directed the dismissal of the complaint. We reverse.
CPLR 317 permits a defendant who has been "served with a summons other than bypersonal delivery" to defend the action upon a finding by the court that the defendant"did not personally receive notice of the summons in time to defend and has ameritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr.Co., 67 NY2d 138, 141 [1986]; Unifiller Sys., Inc. v Melita Corp., 127 AD3d 961 [2015];Grosso v MTO Assoc. Ltd.Partnership, 12 AD3d 402, 403 [2004]).
[*2] The defendant, who was properly served with processpursuant to CPLR 308 (4), failed to make the requisite showing that she did not receiveactual notice of the summons and complaint in time to defend the action (see Wassertheil v Elburg, LLC,94 AD3d 753, 754 [2012]). Accordingly, the defendant's motion should have beendenied.
In light of our determination, we need not reach the parties' remaining contentions.Mastro, J.P., Austin, Sgroi and Barros, JJ., concur. [Prior Case History: 2013 NYSlip Op 30003(U).]