Opinion
08-17-2016
NATIONSTAR MORTGAGE, LLC, respondent, v. Marjorie AVELLA, etc., appellant, et al., defendants.
Clair & Gjertsen, White Plains, NY (Lancelot E. Colquitt of counsel), for appellant. Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
Clair & Gjertsen, White Plains, NY (Lancelot E. Colquitt of counsel), for appellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion In an action to foreclose a mortgage, the defendant Marjorie Avella appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 25, 2015, as denied that branch of her cross motion which was to dismiss the complaint for lack of standing.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In October 2013, the plaintiff commenced this action to foreclose a mortgage. The defendant Marjorie Avella (hereinafter the defendant) failed to timely appear or answer the complaint (see CPLR 320[a] ). Thereafter, in March 2014, the defendant, through counsel, served an answer, which alleged, as an affirmative defense, that the plaintiff lacked standing to commence this action. The plaintiff rejected the answer as untimely and advised the defendant that it would deem the untimely answer a notice of appearance by the defendant's then-counsel.
Subsequently, in February 2015, the plaintiff moved for an order of reference and the defendant cross-moved, inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing to commence the action. In the order appealed from, the Supreme Court, among other things, denied the defendant's cross motion. Since the defendant did not timely answer the complaint or timely make a pre-answer motion to dismiss the complaint, she waived the defense of lack of standing (see U.S. Bank N.A. v. Gulley, 137 A.D.3d 1008, 1009, 27 N.Y.S.3d 601 ; FCDB FF1 2008–1 Trust v. Videjus, 131 A.D.3d 1004, 1004, 17 N.Y.S.3d 54 ; Southstar III, LLC v. Enttienne, 120 A.D.3d 1332, 1333, 992 N.Y.S.2d 548 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244, 837 N.Y.S.2d 247 ). Prior to cross-moving, inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing, the defendant did not seek an extension of time to answer (see CPLR 3012[d] ), or request an extension of time within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint.
Accordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was to dismiss the complaint on the ground that the plaintiff lacked standing to commence the action.
In light of our determination, we need not reach the defendant's remaining contention.