HSBC Bank USA, Nat'l Ass'n v. Diallo

190 A.D.3d 959

141 N.Y.S.3d 72

HSBC BANK USA, NATIONAL ASSOCIATION, respondent,

v.Mohamed DIALLO, appellant, et al., defendants.

2018-10659

2018-10660

Index No. 23750/08

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 9, 2020

January 27, 2021

Law Offices of Joseph N. Obiora, LLC, Jamaica, NY, for appellant.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP (Reed Smith LLP, New York, NY [Joseph S. Jacobs and Andrew B. Messite ], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mohamed Diallo appeals from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated April 9, 2018. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Mohamed Diallo and for an order of reference, and denied the cross motion of the defendant Mohamed Diallo, in effect, to vacate his default in appearing or answering the complaint and for leave to serve a late answer, and, thereupon, to dismiss the complaint insofar as asserted against him. The second order, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Mohamed Diallo and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan.

ORDERED that the orders are affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, Mohamed Diallo (hereinafter the defendant) to foreclose a mortgage which secured a note in the amount of $551,250. The plaintiff subsequently moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. The defendant cross-moved, in effect, to vacate his default in appearing or answering the complaint and for leave to serve a late answer, and, thereupon, to dismiss the complaint insofar as asserted against him. In an order dated April 9, 2018, the Supreme Court, among other things, granted those branches of the plaintiff's motion and denied the defendant's cross motion. In a second order dated April 9, 2018, the court, inter alia, referred the matter to a referee to ascertain and compute the amount due on the mortgage loan. The defendant appeals from both orders. We affirm the orders insofar as appealed from.

"On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default" ( L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 729, 90 N.Y.S.3d 92 ; see CPLR 3215[f] ; Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 784–785, 11 N.Y.S.3d 623 ). "To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense" ( Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d at 785, 11 N.Y.S.3d 623 ; see Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 55 N.Y.S.3d 400 ).

Here, the plaintiff submitted evidence of service of the summons and complaint upon the defendant, as well as evidence of the facts constituting its cause of action and evidence of the defendants' failure to appear or answer the complaint within the time allowed (see RPAPL 1321[1] ; CPLR 3215[f] ; 21st Mtge. Corp. v. Palazzotto, 164 A.D.3d 1293, 1294, 81 N.Y.S.3d 752 ). Contrary to the defendant's contention, the plaintiff was not required to demonstrate that it had standing to commence the action in order to establish its prima facie entitlement to a default judgment. Standing is not an essential element of a cause of action to foreclose a mortgage (see U.S. Bank N.A. v. Nelson, 169 A.D.3d 110, 113–114, 93 N.Y.S.3d 138 ). Furthermore, where, as here, the plaintiff has demonstrated, prima facie, that a defendant is in default because he "failed to appear" within the meaning of CPLR 3215(a), "that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default" ( Deutsche Bank Natl. Trust Co. v. Hall, 185 A.D.3d 1006, 1011, 129 N.Y.S.3d 146 [emphasis omitted]; see First Franklin Fin. Corp. v. Alfau, 157 A.D.3d 863, 865, 70 N.Y.S.3d 518 ; Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 968, 63 N.Y.S.3d 890 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ; cf. CPLR 5015[a] ), and obtaining leave to serve a late answer (see CPLR 3012[d] ). This is true, even if the nonjurisdictional defense "may be raised at any time" ( Flagstar Bank, FSB v. Jambelli, 140 A.D.3d 829, 830, 32 N.Y.S.3d 625 ; see HSBC Bank USA, N.A. v. Hasis, 154 A.D.3d 832, 834, 62 N.Y.S.3d 467 ; PHH Mtge. Corp. v. Celestin, 130 A.D.3d 703, 704, 11 N.Y.S.3d 871 ), and "regardless of whether it is exempt from the waiver provisions of CPLR 3211(e)" ( Deutsche Bank Natl. Trust Co. v. Hall, 185 A.D.3d at 1011, 129 N.Y.S.3d ; see Deutsche Bank Natl. Trust Co. v. Ford, 183 A.D.3d 1168, 124 N.Y.S.3d 430 ; see also ...