U.S. Bank N.A. v. Nur

171 N.Y.S.3d 918 (Mem)

U.S. BANK N.A., etc., respondent,

v.Mohammad NUR, et al., defendants,Jefferson & Sons, LLC, defendant-appellant;

Eleven Forty, Inc., nonparty-appellant.

2020–07710, 2020–07711

Index No. 517399/17

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

Argued—May 10, 2022

August 17, 2022

Fadullon Dizon Krul, LLP, Jericho, NY (Juan Paolo F. Dizon and Alexander Krul of counsel), for defendant-appellant and nonparty-appellant.

McCarter & English, LLP, New York, NY (Adam M. Swanson and Jessie D. Bonaros of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., appeal from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated February 6, 2020. 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 Jefferson & Sons, LLC, and for an order of reference, and denied the application of the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Jefferson & Sons, LLC, as abandoned. The second order, insofar as appealed from, granted the same relief to the plaintiff, in effect, denied the same relief to the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., and appointed a referee to compute the amount due to the plaintiff.

ORDERED that on the Court's own motion, the notice of appeal from so much of the first order as denied the application of the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against the defendant Jefferson & Sons, LLC, as abandoned, and the notice of appeal from so much of the second order as, in effect, denied the same relief to the defendant Jefferson & Sons, LLC, and nonparty Eleven Forty, Inc., are deemed to be applications for leave to appeal from those portions of the orders, and leave to appeal from those portions of the orders is granted (see CPLR 5701[c] ); and it is further,

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

The defendant Jefferson & Sons, LLC (hereinafter the defendant), lacked standing to defend the action (see [ U.S. Bank N.A. v. Nur, ––– A.D.3d ––––, 171 N.Y.S.3d 920, Appellate Division Docket No. 2019–07389 ; decided herewith]; Moret, LLC v. NewBank, 194 AD3d 809, 143 N.Y.S.3d 902, 903). In any event, although the defendant and nonparty Eleven Forty, Inc., opposed the plaintiff's motion for leave to enter a default judgment and for an order of reference by requesting that, pursuant to CPLR 3215(c), the complaint be dismissed insofar as asserted against the defendant as abandoned, as the Supreme Court determined, the right to seek dismissal of the complaint pursuant to CPLR 3215(c) was waived (see Bank of Am., N.A. v. Lichter, 192 A.D.3d 957, 140 N.Y.S.3d 775 ; U.S. Rof III Legal...