| American Home Mtge. Servicing, Inc. v Arklis |
| 2017 NY Slip Op 04242 [150 AD3d 1180] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| American Home Mortgage Servicing, Inc.,Plaintiff, v Dasha Arklis, Respondent, et al., Defendants. MTGLQ Investors, L.P.,Nonparty Appellant. |
Knuckles, Komosinski & Elliott, LLP, Elmsford, NY (Michel Lee of counsel), fornonparty-appellant.
Tsyngauz & Associates, P.C., New York, NY (Yefgeny Tsyngauz and SimonMalinowski of counsel), for respondent.
In an action to foreclose a mortgage, nonparty MTGLQ Investors, L.P., as assignee of theplaintiff, American Home Mortgage Servicing, Inc., appeals from an order of the Supreme Court,Kings County (Edwards, J.), dated September 23, 2014, which denied, in effect, as academic, itsmotion for leave to enter a judgment of foreclosure and sale, and, upon deeming the cross motionof the defendant Dasha Arklis pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against her for lack of personal jurisdiction as one to vacate her default in appearing oranswering the complaint, granted the cross motion on the ground that the plaintiff lackedstanding to commence the action.
Ordered that the order is reversed, on the law, with costs, the cross motion of the defendantDasha Arklis is denied, and the matter is remitted to the Supreme Court, Kings County, for adetermination of the motion of nonparty MTGLQ Investors, L.P., for leave to enter a judgment offoreclosure and sale.
On March 17, 2008, the plaintiff, American Home Mortgage Servicing, Inc., commenced thisaction against, among others, the defendant Dasha Arklis (hereinafter the defendant) to foreclosea mortgage encumbering residential real property located at 647 Dekalb Avenue, Brooklyn(hereinafter the subject property). On March 21, 2008, the plaintiff filed an affidavit of service inwhich the plaintiff's process server averred that service was made upon the defendant pursuant toCPLR 308 (4) at the defendant's usual place of abode by, among other things, affixing a copy ofthe summons and complaint to the door of the subject property. In an order dated December 10,2009, the Supreme Court, inter alia, directed the entry of a default judgment in favor of theplaintiff and against all defendants upon their failure to answer, and appointed a referee tocompute the amount due and owing to the plaintiff. On July 25, 2012, the defendant's attorneyappeared at a foreclosure settlement conference and executed a form notice of appearance,bearing the caption and index number of the action, and stating the name, address, and contactinformation [*2]of the attorney's firm, Tsyngauz &Associates, P.C.
By notice of motion dated May 9, 2014, the plaintiff's assignee, nonparty MTGLQ Investors,L.P. (hereinafter MTGLQ), moved, inter alia, for leave to enter a judgment of foreclosure andsale. Thereafter, the defendant, still represented by Tsyngauz & Associates, P.C.,cross-moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againsther for lack of personal jurisdiction, arguing that she did not live at the subject property at thetime that service was purportedly made upon her at that address and, therefore, service was notproperly made upon her. Notably, in the defendant's reply papers, she specified: "Defendant isnot moving to vacate [her default] pursuant to CPLR 317 or CPLR 5015 (a) (1) and does notneed to show a meritorious defense. . . . Defendant is moving pursuant to CPLR3211 (a) (8)."
In the order appealed from, the Supreme Court "deem[ed]" the defendant's cross motion "asone for vacatur pursuant to CPLR 5015." The court found that the defendant "crediblyestablished she was never served," and therefore, any default judgment would be a nullity. Thecourt then went on to consider the issue of standing, which the defendant had not raised in hermotion papers, and found that the plaintiff lacked standing to commence the action. Based on theforegoing, the Supreme Court, inter alia, granted the defendant's cross motion to dismiss thecomplaint insofar as asserted against her on the ground that the plaintiff lacked standing tocommence the action and denied MTGLQ's motion, in effect, as academic. MTGLQappeals.
As MTGLQ correctly contends, the defendant waived any claim that the Supreme Courtlacked jurisdiction over her. Pursuant to CPLR 320 (a), "[t]he defendant appears by serving ananswer or a notice of appearance, or by making a motion which has the effect of extending thetime to answer." Subject to certain exceptions not applicable here (see CPLR 320 [c]),"an appearance of the defendant is equivalent to personal service of the summons upon him,unless an objection to jurisdiction under [CPLR 3211 (a) (8)] is asserted by motion or in theanswer as provided in [CPLR 3211]" (CPLR 320 [b]). "By statute, a party may appear in anaction by attorney (CPLR 321), and such an appearance constitutes an appearance by the partyfor purposes of conferring jurisdiction" (Skyline Agency v Coppotelli, Inc., 117 AD2d135, 140 [1986]; see Countrywide HomeLoans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]). Here, the defendant's attorneyappeared in the action on her behalf by filing a notice of appearance on July 25, 2012, and neitherthe defendant nor her attorney moved to dismiss the complaint on the ground of lack of personaljurisdiction at that time or asserted lack of personal jurisdiction in a responsive pleading (seeCountrywide Home Loans Servicing, LP v Albert, 78 AD3d at 984; Ohio Sav. Bank v Munsey, 34 AD3d659 [2006]; Matter of Woicik v Town of E. Hampton, 207 AD2d 356, 357 [1994]).Accordingly, the defendant waived any claim that the Supreme Court lacked personal jurisdictionover her in this action (see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d at984). To the extent that prior decisions of this Court could be interpreted to require a differentresult (see Frederic v Israel, 104AD3d 909, 910 [2013]; see alsoDeutsche Bank Natl. Trust Co. v Gordon, 129 AD3d 769, 769-770 [2015]), they shouldno longer be followed.
Further, it was error for the Supreme Court to, sua sponte, raise and consider the issue of lackof standing. Having failed to interpose an answer or file a timely pre-answer motion asserting thedefense of lack of standing pursuant to CPLR 3211 (e), the defendant waived that defense (see Deutsche Bank Natl. Trust Co. vHussain, 78 AD3d 989, 990 [2010]).
Since, in the order appealed from, MTGLQ's motion for leave to enter a judgment offoreclosure and sale was, in effect, denied as academic in light of the court's determination on thedefendant's cross motion, we remit the matter to the Supreme Court, Kings County, for adetermination of MTGLQ's motion on the merits (see Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 774 [2016]).Chambers, J.P., Hall, Miller and Connolly, JJ., concur.