Filed Date： 2/18/2014
Status： Precedential
Modified Date： 10/19/2024
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 21, 2012, which granted plaintiffs motion to vacate a prior order granting defendant Michelle A. Ned’s motion to dismiss the complaint and vacating the Judgment of Foreclosure and Sale on default, and upon reconsideration, denied defendant’s motion, and reinstated the Judgment of Foreclosure and Sale, unanimously affirmed, without costs.
In this mortgage foreclosure action, the motion court properly denied defendant’s motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.
We have considered defendant’s remaining contentions and