| Deutsche Bank Natl. Trust Co. v Hall |
| 2020 NY Slip Op 04292 [185 AD3d 1006] |
| July 29, 2020 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Lynden Hall, Appellant, et al., Defendants. |
Chidi Eze, Brooklyn, NY, for appellant.
Davidson Fink, LLP, Rochester, NY (Larry T. Powell of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Lynden Hall appeals from an order of theSupreme Court, Kings County (Noach Dear, J.), dated July 19, 2017. The order granted theplaintiff's motion for leave to enter a default judgment against the defendants and to appoint areferee to compute the sums due and owing to the plaintiff, and denied the cross motion of thedefendant Lynden Hall to dismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage. The plaintiff subsequentlymoved for leave to enter a default judgment against the defendants and to appoint a referee tocompute the sums due and owing to the plaintiff. In support of its motion, the plaintiff submittedevidence to show that all of the defendants in this action had been served with the summons andcomplaint, and that they were all in default for failing to appear or answer within the timeallowed. As relevant here, the plaintiff submitted, among other things, an affidavit of a processserver to show that the defendant Lynden Hall had been served with the summons and complaintpursuant to CPLR 308 (2). In addition, the plaintiff submitted evidence to establish that it wasentitled to foreclose the subject mortgage due to Hall's default in repaying the subject loan.
Hall opposed the motion and cross-moved to dismiss the complaint insofar as assertedagainst him on a multitude of grounds. Hall contended, among other things, that the plaintiff'smotion should be denied and the complaint should be dismissed because (1) the plaintiff lackedstanding to commence this action, (2) the plaintiff failed to comply with RPAPL 1304, (3) theaction was barred by the doctrine of res judicata, and (4) the Supreme Court lacked personaljurisdiction over him.
In the order appealed from, the Supreme Court granted the plaintiff's motion and deniedHall's cross motion. Hall appeals.
As relevant here, "[a]n action is commenced by filing a summons and complaint" (CPLR 304[a]). "A plaintiff appears in an action merely by bringing it" (Siegel & Connors, NY Prac§ 110 [6th ed & Dec. 2019 Update]). "The defendant appears by serving ananswer or a notice of appearance, or by making a motion which has the effect of extending thetime to answer" (CPLR 320 [a]). Where, as here, service was effected pursuant to CPLR 308 (2),"the [defendant's] appearance shall be made within thirty days after service is complete" (CPLR320 [a]; see 3012 [c]).
"After having been served with process, the defendant who wants to avoid a default mustrespond in a proper and timely manner" (Vincent C. Alexander, Practice Commentaries,McKinney's Cons Laws of NY, CPLR C320:1). "Subdivision (a) of CPLR 320 specifies threeways by which the defendant can appear in the action: (1) service of an answer; (2) making amotion which has the effect of extending the time to answer; or (3) serving a notice ofappearance" (id.).
"The answer, of course, is defendant's pleading in response to a complaint" (id.;see CPLR 3011, 3018). "A defendant who has defaulted in answering admits alltraversable allegations in the complaint, including the basic allegation of liability" (Glenwood Mason Supply Co., Inc. vFrantellizzi, 138 AD3d 925, 926 [2016]; see Rokina Opt. Co. v Camera King, 63NY2d 728, 730 [1984]; Cole-Hatchard vEggers, 132 AD3d 718, 720 [2015]).
Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211 (a) extends adefendant's time to answer the complaint (see CPLR 3211 [f]). Such a motion must bemade "before service of the responsive pleading is required" (CPLR 3211 [e]), or it is untimely(see Bennett v Hucke, 64 AD3d529, 530 [2009]).
Finally, a notice of appearance is "a simple document that notifies the plaintiff that defendantis appearing in the action" (Vincent C. Alexander, Practice Commentaries, McKinney's ConsLaws of NY, CPLR C320:1). A notice of appearance "is the response generally reserved for thesituation in which the plaintiff's process consisted of a summons with notice as authorized byCPLR 305 (b)" (id.). "Service of a notice of appearance will avoid a default, at leasttemporarily, and put the plaintiff to the task of serving a complaint within 20 days" (id.;see CPLR 3012 [b]). Under those circumstances, "[a]fter the complaint has been served,the defendant, within 20 days, should either serve an answer or make a motion that extends thetime to answer" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY,CPLR C320:1; see CPLR 3012 [a]).
A defendant's failure to respond to a summons and complaint within the required time"amounts to what CPLR 3215 . . . calls a failure to appear" (Siegel & Connors,NY Prac § 293 [6th ed 2018]; see U.S. Bank N.A. v Gilchrist, 172 AD3d 1425, 1427 [2019])."When a defendant has failed to appear . . . the plaintiff may seek a defaultjudgment against him [or her]" (CPLR 3215 [a]).
"On a motion for leave to enter a default judgment against a defendant based on the failure toanswer or appear, a plaintiff must submit proof of service of the summons and complaint, proofof the facts constituting the cause of action, and proof of the defendant's default" (L & Z Masonry Corp. v Mose,167 AD3d 728, 729 [2018]; see CPLR 3215 [f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783,784-785 [2015]). "To defeat a facially sufficient CPLR 3215 motion, a defendant must showeither that there was no default, or that [he or she] had a reasonable excuse for [his or her] delayand a potentially meritorious defense" (Liberty County Mut. v Avenue I Med., P.C., 129AD3d at 785; see Clarke v Liberty Mut.Fire Ins. Co., 150 AD3d 1192, 1195 [2017]).
In this case, the plaintiff submitted evidence which showed that Hall had been served withthe summons and complaint pursuant to CPLR 308 (2), and that he failed to appear or answerwithin the time allowed. In addition, the plaintiff submitted evidence demonstrating that it wasentitled to foreclose the subject mortgage due to Hall's default in repaying the subject loan.
In opposition to the plaintiff's prima facie showing, Hall first contends that he did not defaultin appearing. In this regard, Hall asserts that he made an "informal appearance" during the courseof this action and was, therefore, not in default. He contends that "even if [an] 'informalappearance' is made after the expiration of the time to answer or move specified in CPLR320 (a) . . . judgment by default is precluded." Hall's contention is withoutmerit.
It is true that "[i]n addition to the formal appearances listed in CPLR 320 (a), the lawcontinues to recognize the so-called 'informal' appearance" (Siegel & Connors, NY Prac§ 112 [6th ed 2018]). "It comes about when the defendant, although not havingtaken any of the steps that would officially constitute an appearance under CPLR 320 (a),nevertheless participates in the case in some way relating to the merits" (id.).
Although "an informal appearance can prevent a finding that the defendant is in default,thereby precluding entry of a default judgment" (Vincent C. Alexander, Practice Commentaries,McKinney's Cons Laws of NY, CPLR C320:4), this is only true when the participationconstituting the informal appearance occurred within the time limitations imposed for making aformal appearance (see Taylor v Taylor, 64 AD2d 592, 592 [1978]; see also Jeffers v Stein, 99 AD3d970, 971 [2012]; Stewart vRaymond Corp., 84 AD3d 932, 933 [2011]; Parrotta v Wolgin, 245 AD2d 872,873 [1997]). Indeed, even service of a formal "notice of appearance will not protect the defendantfrom entry of a default judgment if, after service of the complaint, the defendant does not timelymake a CPLR 3211 motion or serve an answer" (Vincent C. Alexander, Practice Commentaries,McKinney's Cons Laws of NY, CPLR C320:1). Accordingly, an informal appearance, withoutmore, does not somehow absolve a defendant from complying with the time restrictions imposedby CPLR 320 (a) which govern the service of an answer or the making of a motion pursuant toCPLR 3211 (see CPLR 3215 [a]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167 [2010]).Contrary to Hall's contention, this Court has never held otherwise; to do so would effectivelyeliminate any need for compliance with the time limitations imposed by CPLR 320 (a), andrender those statutory provisions meaningless for all practical purposes (see City of Newburgh v 96 BroadwayLLC, 72 AD3d 632, 633 [2010]; Carlin v Carlin, 52 AD3d 559, 560-561 [2008]; cf. CPLR3215 [a]).
Hall next contends that he successfully rebutted the plaintiff's evidence regarding servicepursuant to CPLR 308 (2). However, "[a] defendant may waive the issue of lack of personaljurisdiction by appearing in an action, either formally or informally, without raising the defenseof lack of personal jurisdiction in an answer or pre-answer motion to dismiss" (Cadlerock Joint Venture, L.P. vKierstedt, 119 AD3d 627, 628 [2014]; see Taveras v City of New York, 108 AD3d 614, 617 [2013]).Here, as Hall himself argues, he engaged in significant activity after his statutory time to answerhad expired, which amounted to an informal appearance. This activity was sufficient to warrant afinding that Hall had acknowledged the jurisdiction of the court without preserving his objectionbased on improper service (see Taveras v City of New York, 108 AD3d at 617-618; Finn v Church for the Art of Living,Inc., 90 AD3d 826, 827 [2011]; Matter of Sessa v Board of Assessors of Town of N. Elba, 46 AD3d1163, 1166 [2007]; see alsoDeutsche Bank Natl. Trust Co. v Vu, 167 AD3d 844, 846 [2018]; U.S. Bank N.A. v Pepe, 161 AD3d811, 813 [2018]). Accordingly, Hall waived any objection on the ground of lack of personaljurisdiction (see HSBC Bank USA, N.A.v Taub, 170 AD3d 1128, 1130 [2019]).
Finally, Hall contends that the Supreme Court should have denied the plaintiff's motion andgranted his cross motion to dismiss because the plaintiff lacked standing to commence thisaction, the plaintiff failed to comply with RPAPL 1304, and the action was barred by the doctrineof res judicata. Hall argues that "inasmuch as [he] has neither filed a motion to dismiss underCPLR 3211 (a) nor an answer, there has been no waiver of any affirmative defenses." Again,Hall's argument is without merit.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be based on variousgrounds, including, as relevant here, lack of standing, failure to comply with RPAPL 1304, or resjudicata (see CPLR 3211 [a] [1]-[11]; Bank of N.Y. Mellon Trust Co., NA v Obadia, 176 AD3d 1020,1021 [2019]). A defendant may also choose to interpose those defenses in an answer (seegenerally Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY,CPLR C320:1). However, a defendant's right to interpose a defense is subject to the timelimitations imposed by CPLR 320 (see e.g. U.S. Bank N.A. v Gilchrist, 172 AD3d at1427-1428). Accordingly, where the plaintiff has demonstrated, prima facie, that a defendant isin default because he or she "failed to appear" within the meaning of CPLR 3215 (a), thatdefendant is generally precluded from raising any nonjurisdictional defense without firstrebutting the prima facie showing of default (see First Franklin Fin. Corp. v Alfau, 157 AD3d 863, 865 [2018];Nationstar Mtge., LLC v Kamil, 155AD3d 968, 968 [2017]; Fried vJacob Holding, Inc., 110 AD3d 56, 60 [2013]; cf. CPLR 5015 [a]), and obtainingleave to serve a late answer (see CPLR 3012 [d]). This is true, even if thenonjurisdictional defense "may be raised at any time" (Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830 [2016]; see HSBC Bank USA, N.A. v Hasis,154 AD3d 832, 834 [2017]; PHHMtge. Corp. v Celestin, 130 AD3d 703, 704 [2015]), and regardless of whether it isexempt from the waiver provisions of CPLR 3211 (e) (see Deutsche Bank Natl. Trust Co. v Ford, 183 AD3d 1168 [2020];see also JPMorgan Chase Bank, N.A. vCarducci, 67 Misc 3d 561 [Sup Ct, Westchester County 2020]; cf. RPAPL1302-a). Here, the plaintiff demonstrated, prima facie, that Hall was in default for failing toappear within the meaning of CPLR 3215 (a). Hall was thus required to rebut that showing anddemonstrate that he should be relieved of the consequences of his default (see Gerster's Triple E. Towing &Repair, Inc. v Pishon Trucking, LLC, 167 AD3d 1353, 1355-1356 [2018]; cf.CPLR 3012 [d]; 5015 [a]). Hall failed to sustain this burden. Accordingly, he is precluded fromraising lack of standing, failure to comply with RPAPL 1304, or res judicata as defenses to thisaction (see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427-1428; HSBC Bank USA,N.A. v Hasis, 154 AD3d at 834; Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067, 1069 [2016]).Inasmuch as those defenses were never properly raised by Hall, the plaintiff was not required todisprove them to obtain the relief it sought in its motion (see Flagstar Bank, FSB vJambelli, 140 AD3d at 830; U.S.Bank N.A. v Carey, 137 AD3d 894, 895-896 [2016]).
Accordingly, we agree with the Supreme Court's determination granting the plaintiff's motionfor leave to enter a default judgment against the defendants and to appoint a referee to computethe sums due and owing to the plaintiff, and denying Hall's cross motion to dismiss the complaintinsofar as asserted against him. Mastro, J.P., Miller, Maltese and Brathwaite Nelson, JJ.,concur.