SRMOF II 2012-I Trust v. Tella

SRMOF II 2012-I Trust v Tella (2016 NY Slip Op 04100)

SRMOF II 2012-I Trust v Tella

2016 NY Slip Op 04100

Decided on May 26, 2016

Appellate Division, First Department

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.

Decided on May 26, 2016
Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels, Kahn, JJ.

381099/12 1265N 1264N

[*1] SRMOF II 2012-I Trust, etc., Plaintiff-Respondent-Appellant,

v

Mercy I. Tella, etc., Defendant-Appellant-Respondent, City of New York Environmental Control Board, et al., Defendants.

Biolsi Law Group P.C., New York (Steven A. Biolsi of counsel), for appellant-respondent.

The Law Offices of Charles Wallshein, Melville (Charles W. Marino of counsel), and Stiene & Associates, P.C., Huntington (Charles W. Marino of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2014, which, inter alia, granted plaintiff's motion for a default judgment, and order, same court and Justice, entered September 22, 2015, which denied plaintiff's motion to remove defendant Mercy Tella as a necessary party to this action, and proceed without her, unanimously affirmed, without costs.

Plaintiff's excuse for its delay in moving for a default judgment indicates that there was activity well within the one-year period specified in CPLR 3215(c) (see Pappoe v Custodio, 156 AD2d 211 [1st Dept 1989]). Defendant Tella offers no excuse for her default in answering the complaint, and her attempt to challenge the sufficiency of the documents underlying plaintiff's motion for a default judgment is unpreserved and in any event unavailing. Plaintiff's proof of service, the summons and complaint, and Tella's default in answering when served with process, in conjunction with "[the] affidavit of merit by the current loan servicer/assignee of the note and mortgage, who averred facts which constitute cognizable claims for foreclosure and sale against the obligor/mortgagor defendant[]," are sufficient to support plaintiff's motion (BAC Home Loan Servicing, LP v Betram, ___ Misc 3d ___, 2016 NY Slip Op 26053, *6 [Sup Ct, Suffolk County Jan. 7, 2016]; see also HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206 [2d Dept 2015]).

Plaintiff failed to demonstrate that it waived its right to assert a deficiency judgment against Tella, and, thus, failed to establish that Tella is not a necessary or indispensable party

who can be severed from these proceedings (see Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805, 805 [2d Dept 1981]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2016

CLERK