| 21st Mtge. Corp. v Palazzotto |
| 2018 NY Slip Op 06072 [164 AD3d 1293] |
| September 19, 2018 |
| Appellate Division, Second Department |
[*1](September 19, 2018)
| 21st Mortgage Corporation, Appellant, v AnthonyPalazzotto, Respondent, et al., Defendants. |
Leopold & Associates, PLLC, Armonk, NY (Erin E. Wietecha of counsel), forappellant.
LaMonica Herbst & Maniscalco, LLP, Wantagh, NY (Melanie A. FitzGerald ofcounsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Noach Dear, J.), dated June 14, 2016. The order denied the plaintiff'smotion for leave to enter a default judgment and for an order of reference, and granted the crossmotion of the defendant Anthony Palazzotto to dismiss the complaint insofar as asserted againsthim as time-barred and to cancel the notice of pendency filed against the subject property.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for leave toenter a default judgment and for an order of reference is granted, and the cross motion of thedefendant Anthony Palazzotto to dismiss the complaint insofar as asserted against him astime-barred and to cancel the notice of pendency filed against the subject property is denied.
In July 2014, the plaintiff commenced this mortgage foreclosure action against, amongothers, the defendant Anthony Palazzotto. Palazzotto defaulted in answering or appearing, andthe plaintiff moved for leave to enter a default judgment and for an order of reference. Palazzottoopposed the motion, and cross-moved to dismiss the complaint insofar as asserted against him astime-barred and to cancel the notice of pendency filed against the subject property. He arguedthat the debt was accelerated in 2008, when a prior action was commenced to foreclose the samemortgage. The Supreme Court denied the plaintiff's motion, and granted Palazzotto's crossmotion. The plaintiff appeals.
The plaintiff demonstrated its entitlement to a default judgment and an order of reference bysubmitting proof of service of a copy of the summons and complaint, proof of the factsconstituting the causes of action, including that the defendant defaulted on his paymentobligations, and proof that neither he nor any of the other defendants had otherwise appeared oranswered the complaint within the time allowed (see RPAPL 1321 [1]; CPLR 3215 [f];HSBC Bank USA v Angeles, 143AD3d 671, 673 [2016]; HSBCBank USA, N.A. v Traore, 139 AD3d 1009 [2016]).
Palazzotto waived a statute of limitations defense by failing to raise it in an answer or in atimely pre-answer motion to dismiss (see CPLR 3211 [a] [5]; [e]; MidFirst Bank v Ajala, 146 AD3d875 [2017]; South Point, Inc. vRana, 139 AD3d 935, 935-936 [2016]; Ferri v Ferri, 71 AD3d 949, 950 [2010]).
[*2] Accordingly, the Supreme Court should have granted theplaintiff's motion for leave to enter a default judgment and for an order of reference, and deniedthe defendant's cross motion to dismiss the complaint insofar as asserted against him astime-barred and to cancel the notice of pendency filed against the subject property. Balkin, J.P.,Barros, Iannacci and Christopher, JJ., concur.