| HSBC Bank USA, N.A. v Taub |
| 2019 NY Slip Op 02319 [170 AD3d 1128] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., Respondent, v Aryeh Taub,Appellant, et al., Defendants. |
Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi and Aveet Basnyat ofcounsel), for appellant.
McCabe, Weisberg & Conway, LLC, New Rochelle, NY (Melisa Zukic and MarsKhaimov of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Aryeh Taub appeals from an order of theSupreme Court, Kings County (Sylvia G. Ash, J.), dated May 31, 2017. The order, insofar asappealed from, denied that defendant's motion (1) pursuant to CPLR 5015 (a) (4) to vacate (a) anorder of the same court (Herbert Kramer, J.) dated November 17, 2009, granting that branch ofthe plaintiff's motion which was pursuant to CPLR 308 (5) for leave to serve him by analternative method, (b) so much of an order of the same court (Sylvia G. Ash, J.) datedSeptember 5, 2013, as granted that branch of the plaintiff's motion which was for an order ofreference, (c) so much of an order of the same court (Sylvia G. Ash, J.) dated November 30,2016, as granted the plaintiff's motion for a judgment of foreclosure and sale, and (d) a judgmentof foreclosure and sale of the same court (Sylvia G. Ash, J.) dated December 8, 2016, and (2)pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lackof personal jurisdiction.
Ordered that the order dated May 31, 2017, is affirmed insofar as appealed from, withcosts.
In April 2009, the plaintiff commenced this action against, among others, the defendantAryeh Taub (hereinafter the defendant) to foreclose a mortgage on residential property located at471 Liberty Avenue in Brooklyn. In October 2009, the plaintiff moved, ex parte, inter alia, forleave to serve the defendant by publication. In an order dated November 17, 2009, the SupremeCourt granted that branch of the plaintiff's motion to the extent of directing the plaintiff to servethe defendant by certified mail at the 471 Liberty Avenue address and, among other things, bydelivering the papers to a person of suitable age and discretion at a different address in Brooklynand at an address in Queens. Thereafter, the defendant failed to appear or answer the complaint.In an order dated September 5, 2013, the court granted the plaintiff's motion, inter alia, for leaveto enter a default judgment against the defendant and for an order of reference.
In an order dated February 24, 2015, the Supreme Court conditionally dismissed the actionunless the plaintiff filed a note of issue or otherwise proceeded by motion for entry of judgmentwithin 90 days. On June 4, 2015, the action was dismissed. On June 10, 2015, the plaintiffmoved for a judgment of foreclosure and sale. The defendant opposed the motion andcross-moved to impose sanctions against the plaintiff, arguing that the plaintiff had not moved tovacate the dismissal of the action. The plaintiff then moved to vacate the dismissal and restorethe action to the active calendar. The defendant opposed the motion on the ground that theplaintiff failed to provide an excuse for its delay in moving to vacate the dismissal. In an orderdated November 30, 2016, the court granted the plaintiff's motion to vacate the dismissal andrestore the action to the active calendar, and the plaintiff's separate motion for a judgment offoreclosure and sale. The court also granted the defendant's cross motion for sanctions, anddirected the plaintiff to pay the defendant's counsel the sum of $4,000. Subsequently, the courtissued a judgment of foreclosure and sale dated December 8, 2016.
On January 4, 2017, the defendant moved pursuant to CPLR 5015 (a) (4) to vacate thejudgment of foreclosure and sale, so much of the order dated November 30, 2016, as granted theplaintiff's motion for a judgment of foreclosure and sale, so much of the order dated September 5,2013, as granted that branch of the plaintiff's motion which was for an order of reference, and theorder dated November 17, 2009. The defendant also moved pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against him for lack of personal jurisdiction. Theplaintiff cross-moved pursuant to CPLR 306-b for an extension of time to re-serve the summonsand complaint on the defendant. In an order dated May 31, 2017, the Supreme Court denied thedefendant's motion, and denied the plaintiff's cross motion as academic. The defendant appealsfrom so much of the order dated May 31, 2017, as denied his motion.
"A defendant may waive the issue of lack of personal jurisdiction by appearing in an action,either formally or informally, without raising the defense of lack of personal jurisdiction in ananswer or pre-answer motion to dismiss" (Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628[2014]; see Taveras v City of NewYork, 108 AD3d 614, 617 [2013]; Finn v Church for the Art of Living, Inc., 90 AD3d 826, 827[2011]). Here, by opposing the plaintiff's motions, including its motion for a judgment offoreclosure and sale, and cross-moving for sanctions against the plaintiff, the defendant engagedin significant activity after his statutory time to answer had expired, which amounted to aninformal appearance (see Matter ofSessa v Board of Assessors of Town of N. Elba, 46 AD3d 1163, 1166 [2007]). Therecord indicates that the defendant's counsel appeared in court on at least 11 occasions withoutraising the jurisdictional objection. Therefore, the defendant waived any objection on the groundof lack of personal jurisdiction (see Finn v Church for the Art of Living, Inc., 90 AD3d at827; Matter of Roslyn B. v Alfred G., 222 AD2d 581, 582 [1995]).
The defendant's remaining contentions need not be reached in light of our determination.
Accordingly, we agree with the Supreme Court's determination to deny the defendant'smotion pursuant to CPLR 5015 (a) (4) to vacate, inter alia, the judgment of foreclosure and sale,and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him forlack of personal jurisdiction. Scheinkman, P.J., Miller, Barros and Brathwaite Nelson, JJ.,concur.