| US Bank N.A. v Oliver |
| 2020 NY Slip Op 01109 [180 AD3d 843] |
| February 13, 2020 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association,Respondent, v Cathy Oliver, Appellant. |
Cathy Oliver, Brooklyn, NY, appellant pro se.
Hogan Lovells US LLP, New York, NY (Robin L. Muir, Lisa J. Fried, and ChristianFletcher of counsel), for respondent.
In an action to foreclose a mortgage, the defendant appeals from an order of theSupreme Court, Westchester County (Lewis J. Lubell, J.), dated March 24, 2017. Theorder, insofar as appealed from, denied the defendant's motion, inter alia, to dismiss thecomplaint for failure to comply with RPAPL 1304.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage on real property ownedby the defendant. The defendant failed to answer the complaint. Thereafter, the SupremeCourt granted the plaintiff's motion, inter alia, for leave to enter a default judgmentagainst the defendant and for an order of reference. Subsequently, the plaintiff moved fora judgment of foreclosure and sale, and the defendant moved, among other things, tovacate the order of reference. The court granted the plaintiff's motion and denied thedefendant's motion. The court then issued a judgment of foreclosure and sale.
Thereafter, the defendant moved, inter alia, pursuant to CPLR 5015 (a) (1) to vacatethe judgment of foreclosure and sale and the order of reference and, in effect, to dismissthe complaint, based on, among other things, the plaintiff's alleged failure to comply withRPAPL 1304. In an order dated July 28, 2016, the Supreme Court denied the defendant'smotion. The defendant did not appeal from that order.
The defendant subsequently filed the instant motion, inter alia, to dismiss thecomplaint based on the plaintiff's alleged failure to comply with RPAPL 1304. In herreply papers, the defendant also sought, in effect, to vacate the judgment of foreclosureand sale and the order of reference for lack of personal jurisdiction and, thereupon, todismiss the complaint on that ground. In an order dated March 24, 2017, the SupremeCourt denied the defendant's motion. The defendant appeals from the order dated March24, 2017.
Contrary to the defendant's contention, the Supreme Court properly declined toreview her contention that the complaint should be dismissed for lack of personaljurisdiction, since she sought this relief for the first time in her reply papers (see generally North Shore Envtl.Solutions, Inc. v Glass, 17 AD3d 427, 428 [2005]).
We agree with the Supreme Court's determination to deny that branch of thedefendant's motion which was to dismiss the complaint based on the plaintiff's allegedfailure to comply with RPAPL 1304 on the ground that it was barred by the doctrine ofthe law of the case (see Martin v City of Cohoes, 37 NY2d 162, 165 [1975]; Strujan v Glencord Bldg.Corp., 137 AD3d 1252, 1253 [2016]). Although this Court is not bound by thelaw of the case doctrine and may consider the subject branch of the defendant's motionon the merits (see Wells FargoBank, N.A. v Fleurant, 150 AD3d 790, 791 [2017]), since the defendant neverestablished her entitlement to vacatur of her default in appearing or answering, sheshould be precluded under the circumstances from raising the issue of whether theplaintiff complied with the notice provisions of RPAPL 1304, as a defense to this action(see PHH Mtge. Corp. vCelestin, 130 AD3d 703, 704 [2015]; see also HSBC Bank USA, N.A. v Hasis, 154 AD3d 832,834 [2017]).
The defendant's remaining contentions are without merit. Scheinkman, P.J., Rivera,Balkin and Leventhal, JJ., concur.