| Nationstar Mtge., LLC v Kamil |
| 2017 NY Slip Op 08277 [155 AD3d 968] |
| November 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC, Respondent, v MuhammadT. Kamil, Appellant, et al., Defendants. |
Bhatia & Associates, PLLC, New York, NY (Satish K. Bhatia of counsel), forappellant.
RAS Boriskin, LLC, Westbury, NY (Jason W. Creech and Ryan D. Mitola of counsel), andSandelands Eyet LLP, New York, NY (Mitchell Zipkin of counsel), for respondent (one brieffiled).
In an action to foreclose a mortgage, the defendant Muhammad T. Kamil appeals from anorder of the Supreme Court, Nassau County (Adams, J.), entered October 13, 2015, whichgranted the plaintiff's motion for an order of reference.
Ordered that the order is affirmed, with costs.
In support of its motion for an order of reference (see RPAPL 1321), the plaintiffsubmitted, inter alia, the affidavit of its document execution specialist, which set forth the factsestablishing the claim, including that the plaintiff was the holder of the note and that thedefendant Muhammad T. Kamil (hereinafter the defendant) defaulted under the terms of the noteand mortgage, as well as proof that the defendant failed to answer within the time allowed (see US Bank N.A. v Louis, 148 AD3d758, 759 [2017]; US Bank N.A. vSmith, 132 AD3d 848, 850 [2015]). The defendant opposed the motion by submittingthe affirmation of his attorney, who argued that the plaintiff lacks standing and failed to complywith RPAPL 1302, 1303, 1304, and 1306. The Supreme Court granted the plaintiff's motion, andthe defendant appeals. We affirm.
The defendant's contention that the plaintiff failed to comply with the notice provisions ofRPAPL 1303 and the pleading requirements of RPAPL 1302 is without merit. The plaintiffprovided proof that it had complied with the requirements thereof, and the defendant did notrefute that proof (see PHH Mtge. Corp.v Israel, 120 AD3d 1329 [2014]). The defendant's bare and unsubstantiated denial ofreceipt of notice pursuant to RPAPL 1303 was insufficient to rebut the presumption of properservice created by the affidavit of service (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103[2011]).
Since the defendant failed to appear or answer the complaint, and also failed to demonstrategrounds for vacating his default (see Nationstar Mtge., LLC v Kamil, 155 AD3d 966 [2017] [decided herewith]), he is precluded from asserting the plaintiff's lack of standing as adefense (see Bank of N.Y. Mellon vIzmirligil, 144 AD3d 1067, 1069 [2016]; HSBC Bank USA v Angeles, 143 AD3d 671, 671 [2016];Chase Home Fin., LLC v Garcia, 140 AD3d [*2]820, 821[2016]).
The defendant's contention that the plaintiff's motion for an order of reference should havebeen denied on the basis that the plaintiff failed to make the motion within one year of his defaultin answering the complaint is not properly before this Court, as it was not raised before theSupreme Court (see U.S. Bank N.A. vAlba, 130 AD3d 715, 715-716 [2015]).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for an order ofreference (see US Bank N.A. v Louis, 148 AD3d at 759; HSBC Bank USA, N.A. v Clayton, 146AD3d 942, 944 [2017]; WellsFargo Bank, N.A. v Daskal, 142 AD3d 1071, 1073 [2016]). Eng, P.J., Rivera, Romanand Connolly, JJ., concur.