New York Supreme and/or Appellate Courts Appellate Division, First Department
February 16, 2012
HSBC BANK USA N.A., ETC.,
JANET THOMAS, ET AL., DEFENDANTS, MAURICE THOMAS, ET AL.,
HSBC Bank USA N.A. v Thomas
Decided on February 16, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Friedman, Freedman, Abdus-Salaam, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered October 8, 2010, which denied defendants Maurice Thomas and Sharon Thomas's motion to vacate a default judgment and a judgment of foreclosure and sale, and to stay the Referee's sale of the subject property, unanimously affirmed, without costs.
The defendants in this foreclosure action include the mortgagor, Janet Thomas, and the property's former owners and current occupants, Maurice Thomas and Sharon Thomas. This appeal concerns the motion by Maurice and Sharon Thomas to vacate the judgment of foreclosure entered against them following their default on plaintiff's summary judgment motion.
While Janet Thomas defaulted by failing to answer the complaint, an answer was served on behalf of Maurice and Sharon Thomas, by attorney Ian Belinfanti. One of the defenses asserted in that answer was a lack of personal jurisdiction; however, inasmuch as no motion was made within 60 days based on improper service of process, that defense must be deemed waived (CPLR 3211[e]). Nevertheless, Maurice and Sharon Thomas contend that the interposed answer must be disregarded and their claim that they were never served must be addressed, because Ian Belinfanti was never retained or authorized to represent them.
We reject their argument. Their submissions fail to justify such a negation of the answer. In order to explain what occurred, they assert that Belinfanti was representing them in a separate dispute with Janet Thomas, and that when they received mail addressed to Janet Thomas, they forwarded it to Belinfanti for him to handle; they suggest that this mail must have been the summons and complaint, and imply that Belinfanti must have interpreted their forwarding it to him as a retention of his services in this foreclosure action. In the face of their acknowledgment that Belinfanti was representing them in the dispute with Janet Thomas, their suggestions and speculation are simply insufficient to permit any possible finding that Belinfanti appeared and filed an answer on their behalf without authorization.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2012
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