| Nationstar Mtge., LLC v Avella |
| 2016 NY Slip Op 05798 [142 AD3d 594] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC,Respondent, v Marjorie Avella, Also Known as Marjorie A. Avella, Individuallyand as Surviving Spouse of Alexander A. Avella, Jr., Deceased, Appellant, et al.,Defendants. |
Clair & Gjertsen, White Plains, NY (Lancelot E. Colquitt of counsel), forappellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Marjorie Avella appeals, aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Lefkowitz, J.), dated June 25, 2015, as denied that branch of her cross motion whichwas to dismiss the complaint for lack of standing.
Ordered that the order is affirmed insofar as appealed from, with costs.
In October 2013, the plaintiff commenced this action to foreclose a mortgage. Thedefendant Marjorie Avella (hereinafter the defendant) failed to timely appear or answerthe complaint (see CPLR 320 [a]). Thereafter, in March 2014, the defendant,through counsel, served an answer, which alleged, as an affirmative defense, that theplaintiff lacked standing to commence this action. The plaintiff rejected the answer asuntimely and advised the defendant that it would deem the untimely answer a notice ofappearance by the defendant's then-counsel.
Subsequently, in February 2015, the plaintiff moved for an order of reference and thedefendant cross-moved, inter alia, to dismiss the complaint on the ground that theplaintiff lacked standing to commence the action. In the order appealed from, theSupreme Court, among other things, denied the defendant's cross motion.
Since the defendant did not timely answer the complaint or timely make a pre-answermotion to dismiss the complaint, she waived the defense of lack of standing (see U.S. Bank N.A. v Gulley,137 AD3d 1008, 1009 [2016]; FCDB FF1 2008-1 Trust v Videjus, 131 AD3d 1004, 1004[2015]; Southstar III, LLC vEnttienne, 120 AD3d 1332, 1333 [2014]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 244 [2007]). Prior to cross-moving, inter alia, to dismiss the complaint on theground that the plaintiff lacked standing, the defendant did not seek an extension of timeto answer (see CPLR 3012 [d]), or request an extension of time within which toserve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint.
Accordingly, the Supreme Court properly denied that branch of the defendant's crossmotion which was to dismiss the complaint on the ground that the plaintiff lackedstanding to [*2]commence the action.
In light of our determination, we need not reach the defendant's remainingcontention. Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.