- March 26, 2018
& Scheuerman, New York, NY (Jonathon D. Warner and Karl
E. Scheuerman of counsel), for appellant.
Such & Crane, LLP (D.J. & J.A. Cirando, Syracuse, NY
[John A. Cirando, Bradley E. Keem, and Elizabeth deV.
Moeller], of counsel), for respondent.
M. LEVENTHAL, J.P. SANDRA L. SGROI HECTOR D. LASALLE VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Point Holding
Alpha, LLC, appeals from stated portions of two orders of the
Supreme Court, Kings County (Noach Dear, J.), both dated
March 8, 2016. The first order, inter alia, denied the cross
motion of the defendant Point Holding Alpha, LLC, pursuant to
CPLR 3025(b) for leave to serve an amended answer. The second
order, inter alia, granted those branches of the plaintiffs
motion which were to vacate an order of the same court dated
April 27, 2012, directing dismissal of the complaint on the
ground that the plaintiff failed to comply with
Administrative Orders of the Chief Administrative Judge of
the Courts AO/548/10 and AO/431/11, for summary judgment on
the complaint insofar as asserted against the defendant Point
Holding Alpha, LLC, and for an order of reference.
that the orders dated March 8, 2016, are affirmed insofar as
appealed from, with one bill of costs.
October 2005, Kenyon J. Alphonso executed a note secured by a
mortgage on residential property located in Brooklyn.
Alphonso then transferred the premises to the defendant
Holding Alpha, LLC (hereinafter the defendant). In June 2006,
the plaintiff commenced this action against the defendant,
among others, to foreclose the mortgage, and was awarded
summary judgment on the complaint in June 2009.
order dated February 6, 2012, the Supreme Court denied a
motion by the plaintiff for an order of reference and
directed dismissal of the complaint with prejudice unless,
within 60 days, the plaintiffs counsel submitted an
affirmation in compliance with Administrative Orders of the
Chief Administrative Judge of the Courts AO/548/10 and
AO/431/11. By order dated April 27, 2012, the court directed
dismissal of the complaint on the ground that plaintiffs
counsel failed to file the required affirmation.
plaintiff subsequently moved, inter alia, to vacate the order
dated April 27, 2012, for summary judgment on the complaint,
and for an order of reference. The defendant cross-moved
pursuant to CPLR 3025(b) for leave to serve an amended answer
to assert the affirmative defense of lack of standing. In two
orders, both dated March 8, 2016, the Supreme Court granted
the plaintiffs motion and denied the defendant's cross
motion. The defendant appeals from the orders dated March 8,
Supreme Court providently exercised its discretion in
granting that branch of the plaintiffs motion which was to
vacate the order dated April 27, 2012. In addition to
demonstrating the existence of a meritorious cause of action,
the plaintiff demonstrated a reasonable excuse for its
default by establishing that its counsel had not been sent a
copy, or notice of entry of, the conditional order of
dismissal, such notification likely having been sent to the
plaintiffs former counsel (see Darrell v Yurchuck,
174 A.D.2d 557).
plaintiff established its prima facie entitlement to judgment
as a matter of law by submitting the mortgage, the note, and
evidence of the mortgagor's default (see Wells Fargo
Bank, N.A. v Miller, 150 A.D.3d 1046, 1048; Deutsche
Bank Natl. Trust Co. v Islar, 122 A.D.3d 566). In
opposition, the defendant failed to raise a triable issue of
fact. The defendant's assertion in opposition that the
plaintiff lacked standing was to no avail, as the defendant
waived the defense of lack of standing, inter alia, by
failing to raise it in its answer (see Citibank, N.A. v
Gentile, 156 A.D.3d 859, 860; Wells Fargo Bank
Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 240).
the circumstances of this case, we agree with the Supreme
Court's conclusion that the plaintiff adequately complied
with Administrative Orders of the Chief Administrative Judge
of the Courts AO/548/10 and AO/431/11 (see Deustsche Bank
Natl. Trust Co. v ...