| Wells Fargo Bank, N.A. v Bachmann |
| 2016 NY Slip Op 08227 [145 AD3d 712] |
| December 7, 2016 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Respondent, v Laurence R.Bachmann, Appellant, et al., Defendants. |
Anthony J. LoPresti, Garden City, NY (Gail M. Blasie of counsel), forappellant.
Greenberg Traurig, LLP, New York, NY (Daniel R. Milstein of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Laurence R. Bachmann appealsfrom an order of the Supreme Court, Nassau County (Adams, J.), dated February 20,2015, which (a) denied his motion, in effect, pursuant to CPLR 5015 (a) (4) to vacate ajudgment of foreclosure and sale of the same court entered March 19, 2008, upon his andthe defendant Catherine E. Schmitt's failure to appear or answer the complaint, andpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against thedefendant Catherine E. Schmitt for lack of personal jurisdiction, or, in the alternative,pursuant to CPLR 1015 (a) to stay all proceedings in the action pending the substitutionof a representative for the estate of Catherine E. Schmitt, and (b), sua sponte,discontinued the action insofar as asserted against the defendant Catherine E. Schmittand, in effect, vacated the judgment of foreclosure and sale insofar as entered against thatdefendant.
Ordered that the appeal from so much of the order as, sua sponte, discontinued theaction insofar as asserted against the defendant Catherine E. Schmitt and, in effect,vacated the judgment of foreclosure and sale insofar as entered against that defendant isdismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff's predecessor-in-interest commenced this action to foreclose a mortgageexecuted by the defendants Laurence R. Bachmann and Catherine E. Schmitt againsttheir residential property located in Oceanside. Bachmann and Schmitt owned theproperty as joint tenants with right of survivorship. Neither Bachmann nor Schmittanswered the complaint, and a judgment of foreclosure and sale was entered on March19, 2008. That judgment included a provision authorizing a deficiency judgment againstboth Bachmann and Schmitt.
On February 12, 2011, Schmitt died, leaving Bachmann with the sole ownershipinterest in the property.
[*2] In June 2014,shortly before a foreclosure sale was scheduled to take place, Bachmann moved, ineffect, pursuant to CPLR 5015 (a) (4) to vacate the entire judgment of foreclosure andsale and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst Schmitt for lack of personal jurisdiction, arguing that Schmitt had not beenproperly served with process at the time that the action was commenced. In thealternative, Bachmann sought to stay all proceedings in the action pursuant to CPLR1015 (a) pending the substitution of a representative for Schmitt's estate. The plaintiff'spredecessor-in-interest opposed the motion, and stated that it would consent todiscontinue the action insofar as asserted against Schmitt.
The Supreme Court denied Bachmann's motion, and, noting that the plaintiff'spredecessor-in-interest consented to the discontinuance of the action insofar as assertedagainst Schmitt, discontinued the action insofar as asserted against Schmitt and, in effect,vacated the judgment of foreclosure and sale insofar as entered against her. Bachmannappeals.
Bachmann argues that the Supreme Court erred in, sua sponte, discontinuing theaction insofar as asserted against Schmitt and, in effect, vacating the judgment offoreclosure and sale insofar as entered against her. Bachmann, however, is not aggrievedby the discontinuance of the action insofar as asserted against Schmitt and the vacatur ofthe judgment insofar as entered against her (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144 [2010]). Moreover, no appeal lies as of right from that part of an order whichdoes not decide a motion made on notice (see CPLR 5701 [a] [2]), and wedecline to grant leave to appeal from so much of the order as discontinued the actioninsofar as asserted against Schmitt and, in effect, vacated the judgment insofar as enteredagainst her (see CPLR 5701 [c]). Accordingly, Bachmann's appeal from thatportion of the order must be dismissed (see Garcia v Eurobungy USA, 120 AD3d 623, 624[2014]).
Bachmann contends that the judgment of foreclosure and sale should be vacatedinsofar as asserted against him because he is an "interested party" who, pursuant to CPLR5015 (a) (4), is entitled to seek vacatur of the judgment of foreclosure and sale based onthe alleged failure to properly serve Schmitt with process. He also argues that, just as hetook title to the property upon the death of the deceased joint tenant, Schmitt, he acquiredthe right to assert any defense to the action that could have been asserted by Schmitt. Hiscontentions are without merit. The fact that the Supreme Court might have lackedjurisdiction over one of multiple defendants does not, by itself, warrant vacatur of anotherwise valid judgment insofar as that judgment is against other defendants since thedefense of lack of jurisdiction based on improper service " 'is personal in natureand may only be raised by the party improperly served' " (IMC Mtge. Co. v Vetere, 142AD3d 954, 955 [2016], quoting NYCTL 1996-1 Trust v King, 13 AD3d 429, 430 [2004];see CPLR 5015 [a] [4]; Wells Fargo Bank, N.A. v Bowie, 89 AD3d 931 [2011];Home Sav. of Am. v Gkanios, 233 AD2d 422 [1996]).
Furthermore, the Supreme Court properly denied that branch of Bachmann's motionwhich was to stay all proceedings in the action. Upon Schmitt's death, Bachmannautomatically inherited her ownership interest in the property (see Trotta v Ollivier, 91 AD3d8, 12 [2011]; Goetz vSlobey, 76 AD3d 954, 956 [2010]). Also, by consenting to the post-judgment,but pre-judicial sale, discontinuance of the action insofar as asserted against Schmitt, theplaintiff, in effect, elected not to seek a deficiency judgment against Schmitt's estate (see U.S. Bank N.A. v Esses,132 AD3d 847, 848 [2015]; cf. Aurora Bank FSB v Albright, 137 AD3d 1177 [2016]).Thus, by virtue of the absolute conveyance of the property from Schmitt to Bachman,upon Schmitt's death, and the plaintiff's waiver of its right to seek a deficiency judgmentagainst Schmitt or her estate, strict adherence to the requirement that the proceedings bestayed pending substitution was not necessary, since Schmitt's death did not affect themerits of this case (see generallyHSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673 [2013]; Waterfall Victoria Master Fund,Ltd v Dingilian, 92 AD3d 593 [2012]; DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d857, 858 [2008]).
Bachmann's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied those branches of Bachmann'smotion which were, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale insofar as asserted against him, or, in the alternative, pursuant toCPLR 1015 (a) to stay all [*3]proceedings in the actionpending the substitution of a representative for Schmitt's estate. Leventhal, J.P., Cohen,Miller and LaSalle, JJ., concur.