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Meyerson Capital V. LLC v. Anderson

Supreme Court of New York, First Department

October 8, 2013

Meyerson Capital V. LLC, Plaintiff-Appellant,
v.
Michael Anderson, etc., Defendant-Respondent, New York Transit Authority, et al., Defendants.

Claude Castro & Associates PLLC, New York (Claude Castro of counsel), for appellant.

Law Office of Elliot S. Schlissel, Lynbrook (Andrea E. Miller of counsel), for respondent.

Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse, JJ.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 13, 2012, which granted in part defendant Michael Anderson's (defendant) motion to vacate a judgment of foreclosure and sale, unanimously reversed, on the law, without costs, and the motion denied.

As a preliminary matter, defendant's motion to vacate the judgment lacks a basis in law. The judgment was not entered on default, and defendant did not establish any other ground for the motion (see CPLR 5015[a]; see Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 133 A.D.2d 30, 33 [1st Dept 1987, affd 70 N.Y.2d 831 [1987]). The motion should have been denied for this reason alone.

Defendant's sole stated defense was plaintiff's lack of standing. However, defendant, who appeared by counsel in the foreclosure action, never raised this argument, although it is based on documents submitted in that action (see CitiMortgage, Inc. v Rosenthal, 88 A.D.3d 759, 760-761 [2d Dept 2011]). In any event, plaintiff's showing of standing was adequate. The record reflects the assignment of the mortgage and the note, actual delivery of the note to plaintiff, and recordation of the assignment (see U.S. Bank, N.A. v Collymore, 68 A.D.3d 752, 754 [2d Dept 2009]).


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