| HSBC Bank USA, N.A. v Dalessio |
| 2016 NY Slip Op 01642 [137 AD3d 860] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee forNomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Series2006-AF2, Respondent, v Craig Dalessio et al., Defendants, and Debra Dalessio,Appellant. |
Richard Bartel, Remsenburg, NY, for appellant.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and HeatherR. Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Debra Dalessio appeals from anorder of the Supreme Court, Suffolk County (Farneti, J.), dated January 13, 2014, whichgranted the plaintiff's motion pursuant to CPLR 2001 and 5019 (a) to substitute, nunc protunc, two affidavits of merit and of the amounts due in place of the affidavits of meritand of the amounts due that were attached to the plaintiff's motion for an order ofreference and motion for a judgment of foreclosure and sale, and thereupon to validate anorder of reference dated November 17, 2010, and a judgment of foreclosure and sale alsodated November 17, 2010, and to amend, nunc pro tunc, the caption and complaint, anddenied her cross motion, inter alia, pursuant to CPLR 5015 (a) (1), (3) and (4) to vacatethe judgment of foreclosure and sale entered upon her failure to appear or answer thecomplaint, and thereupon to dismiss the complaint.
Ordered that the order dated January 13, 2014 is affirmed, with costs.
The plaintiff bank commenced this action to foreclose a mortgage entered into by thedefendant Debra Dalessio (hereinafter Dalessio) and her then-husband, contending thatthey stopped making the requisite monthly mortgage payments. On November 17, 2010,upon the failure of the defendants, including Dalessio, to appear or answer the complaint,and upon the unopposed motion of the plaintiff, the Supreme Court issued a defaultjudgment of foreclosure and sale. At the bottom of the judgment of foreclosure and sale,in handwriting, the Supreme Court directed that the "plaintiff's counsel shall comply withAdministrative Order No. 548/2010 at least five business days prior to the foreclosuresale directed herein." Administrative Order 548/10 of the Chief Administrative Judge ofthe Courts, which was subsequently replaced by Administrative Order 431/11, "requiresthe plaintiff's counsel in a residential mortgage foreclosure action to file with the court anaffirmation confirming the accuracy of the plaintiff's pleadings" (Emigrant Sav.Bank-Brooklyn/Queens v Makinano, 126 AD3d 934, 935 [2015]; see Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226 [2014]). In the instant case, the plaintiff'scounsel was advised by the plaintiff that it could not confirm the accuracy with regard tothe execution and notarization of the affidavits of merit and of the amounts due that hadbeen previously submitted to the court in support of the plaintiff's motion for an order ofreference and [*2]motion for a judgment of foreclosureand sale.
The plaintiff then moved pursuant to CPLR 2001 and 5019 (a) to substitute, nuncpro tunc, newly signed affidavits of merit and of the amounts due in place of theaffidavits of merit and of the amounts due that had been attached to the plaintiff's motionfor an order of reference and motion for a judgment of foreclosure and sale. In the samemotion, the plaintiff sought to amend the complaint to replace the "laws of the State ofNew York," with the "laws of the State of Virginia," as its place of incorporation, and toamend the caption to reflect the correct spelling of the plaintiff's name, as reflected in acorrective assignment of mortgage dated March 7, 2013.
"CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake,omission, defect, or irregularity if a substantial right of a party is not prejudiced" (U.S. Bank N.A. v Eaddy, 109AD3d 908, 910 [2013]; seeDeutsche Bank Natl. Trust Co. v Lawson, 134 AD3d 760 [2015]), and CPLR5019 (a) gives trial and appellate courts the discretion to cure mistakes, defects, andirregularities that do not affect substantial rights of parties (see U.S. Bank N.A. vEaddy, 109 AD3d at 910). "The provisions in CPLR 2001 and 5019 (a) may only beemployed to correct errors where the corrections do not affect a substantial right of theparties" (U.S. Bank N.A. v Eaddy, 109 AD3d at 910; see Deutsche Bank Natl. Trust Co.v Lawson, 134 AD3d 760 [2015]; Goldberger v Eisner, 90 AD3d 835, 836 [2011]).
The Supreme Court providently exercised its discretion in granting the plaintiff'smotion in its entirety (seeDeutsche Bank Natl. Trust Co. v Lawson, 134 AD3d 760 [2015]; U.S. BankN.A. v Eaddy, 109 AD3d at 910). Under the circumstances of this case, nosubstantial right of Dalessio will be affected by the court's substitution of the newaffidavits of merit and of the amounts due (see Deutsche Bank Natl. Trust Co. v Lawson, 134 AD3d760 [2015]; U.S. Bank N.A. v Eaddy, 109 AD3d at 910). Nor has Dalessiosuggested any prejudice she would suffer by the court permitting the correction of thename of the plaintiff in the caption, and of the state of incorporation indicated in thecomplaint.
The court also providently exercised its discretion in denying Dalessio's cross motionto vacate the default judgment of foreclosure and thereupon to dismiss the complaint.Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictionalobjection pursuant to CPLR 5015 (a) (4), and seeks a discretionary vacatur pursuant toCPLR 5015 (a) (1), "a court is required to resolve the jurisdictional question beforedetermining whether it is appropriate to grant a discretionary vacatur of the default underCPLR 5015 (a) (1)" (WellsFargo Bank, NA v Besemer, 131 AD3d 1047, 1047 [2015]; see Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d 896, 897 [2013]; Roberts v Anka, 45 AD3d 752, 753 [2007]). Dalessio'sjurisdictional objection is without merit.
Here, a process server's affidavit of service established, prima facie, that Dalessiowas served with the summons and complaint pursuant to CPLR 308 (4) by the "affix andmail" method (see Wells Fargo Bank, NA v Besemer, 131 AD3d at 1048; HSBC Bank USA vDesrouilleres, 128 AD3d 1013, 1014 [2015]; JP Morgan Chase Bank, N.A. vBaldi, 128 AD3d 777, 777-778 [2015]). Dalessio's conclusory andunsubstantiated denial of service was insufficient to rebut the presumption of properservice established by the affidavit of service (see HSBC Bank USA vDesrouilleres, 128 AD3d at 1014; U.S. Bank N.A. v Hasan, 126 AD3d 683, 684 [2015]; Bank of N.Y. v Samuels, 107AD3d 653, 653-654 [2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d724, 725 [2013]). With regard to Dalessio's argument that the court lackedjurisdiction because the plaintiff lacked standing, "an alleged lack of standing is not ajurisdictional defect" (JPMorgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, 823 [2014]).Accordingly, the Supreme Court properly denied that branch of Dalessio's cross motionwhich was to vacate her default pursuant to CPLR 5015 (a) (4).
Dalessio's contention that the complaint should have been dismissed based uponalleged fraud committed by the plaintiff is without merit (see U.S. Bank, N.A. v Peters,127 AD3d 742, 742-743 [2015]; Bank of N.Y. v Lagakos, 27 AD3d 678, 679 [2006]).Accordingly, the Supreme Court properly denied that branch of the cross motion whichwas to vacate her default pursuant to CPLR 5015 (a) (3).
[*3] As to that branch of Dalessio's cross motion whichwas pursuant to CPLR 5015 (a) (1) to vacate the judgment of foreclosure and sale, shefailed to provide "supporting facts in evidentiary form" sufficient to justify her failure toappear or answer the complaint (J & J Alarcon Realty Corp. v Plantains Rest., Inc., 123AD3d 886, 887 [2014] [internal quotation marks omitted]; see Brehm v Patton, 55 AD3d1362, 1363 [2008]; Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d553, 554 [2001]). Since Dalessio failed to establish a reasonable excuse, it is unnecessaryto consider whether she had a potentially meritorious defense to the action (see U.S. Bank N.A. v Alba,130 AD3d 715, 716 [2015]; EMC Mtge. Corp. v Lamb, 126 AD3d 669, 669 [2015]; Wells Fargo Bank, N.A. vHampton, 119 AD3d 856 [2014]; Wells Fargo Bank v Malave, 107 AD3d 880, 881 [2013]).Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.