| HSBC Mtge. Corp. (USA) v Johnston |
| 2016 NY Slip Op 08279 [145 AD3d 1240] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1]
| HSBC Mortgage Corporation (USA),Respondent, v Barbara Johnston, Also Known as Barbara A. Johnston,Appellant, et al., Defendant. |
Law Offices of James W. Hyde IV, Wells (James W. Hyde IV of counsel), forappellant.
Rosicki, Rosicki & Associates, PC, Plainview (David Mushett of counsel), forrespondent.
Aarons, J. Appeal from an order of the Supreme Court (Pritzker, J.), entered April14, 2015 in Washington County, which denied defendant Barbara Johnston's motion to,among other things, renew and reargue a prior order.
After defendant Barbara Johnston (hereinafter defendant) failed to make paymentsdue under her loan, plaintiff commenced this foreclosure action. Supreme Courtsubsequently granted plaintiff's motion for summary judgment and, in 2010, SupremeCourt granted plaintiff a judgment of foreclosure and sale. In 2011, defendant moved tovacate the judgment of foreclosure and sale arguing, among other things, that plaintifflacked standing to commence this action. Supreme Court, in an order entered onFebruary 4, 2014, denied defendant's motion finding that defendant waived theaffirmative defense of lack of standing. Defendant thereafter moved for, among otherthings, renewal and reargument of the February 4, 2014 order. Supreme Court, in anorder entered on April 14, 2015, denied said motion, prompting this appeal by defendant.We affirm.
Initially, because Supreme Court addressed the merits of that part of defendant'smotion seeking reargument, we view the April 14, 2015 order on this point as grantingreargument and adhering to its prior decision. As such, contrary to plaintiff's argument,defendant may appeal from the denial of that part of her motion seeking reargument(see CPLR 5701 [a] [2] [viii]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183,1184-1185 [2015], lv denied 25 NY3d 912 [2015]; Grasso v Schenectady County Pub.Lib., 30 AD3d 814, 816 n 1 [2006]).
We nevertheless conclude that Supreme Court properly adhered to its originaldecision upon reargument inasmuch as defendant failed to demonstrate that SupremeCourt overlooked or misapprehended any fact or law in finding that defendant waivedthe affirmative defense of lack of standing (see CPLR 2221 [d] [2]). Contrary todefendant's assertion, the failure to raise lack of standing as an affirmative defense in ananswer or in a pre-answer motion to dismiss constitutes a waiver of such affirmativedefense (see Nationstar Mtge.,LLC v Alling, 141 AD3d 916, 917 [2016]; CNB Realty v Stone Cast, Inc., 127 AD3d 1438, 1439[2015]; HSBC Bank USA N.A.v Pacyna, 112 AD3d 1246, 1247 [2013]). Furthermore, even affording a liberalpleading standard to defendant, who was pro se when she interposed her answer, weconclude that the statements in her answer—a request that plaintiff produce theoriginal note to determine whether it had been altered or the allegation that plaintiffimproperly converted the mortgage into an asset—did not sufficiently appriseplaintiff that defendant was challenging plaintiff's standing to bring this foreclosureaction (see CPLR 3018 [b]). Accordingly, we find no error in Supreme Court'sdenial of defendant's motion to the extent that it sought reargument.
We also conclude that Supreme Court properly denied that aspect of defendant'smotion seeking renewal. In support of renewal, defendant submitted a partial copy of hercredit history report from 2013 as a means to challenge plaintiff's standing.
This proof, however, would not change the prior determination that defendantwaived the standing defense and, thus, Supreme Court properly denied that aspect ofdefendant's motion seeking renewal (see Matter of Barnes v Venettozzi, 135 AD3d 1250, 1251[2016]).
Peters, P.J., Lynch, Devine and Clark, JJ., concur. Ordered that the order is affirmed,with costs.