Wilmington Trust Co. v. Valdivieso

207 A.D.3d 783

172 N.Y.S.3d 700

WILMINGTON TRUST COMPANY, etc., respondent,

v.Manuel VALDIVIESO, appellant, et al., defendants.

2019–03980

Index No. 9594/08

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

Argued—April 18, 2022

July 27, 2022

Berg & David PLLC, Brooklyn, NY (Abraham David and Sholom Wohlgelernter of counsel), for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Manuel Valdivieso appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated February 6, 2019. The order, insofar as appealed from, upon renewal, vacated a prior determination in an order of the same court dated September 13, 2017, granting that branch of the prior cross motion of the defendant Manuel Valdivieso which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and thereupon denied that branch of the prior cross motion.

ORDERED that the order dated February 6, 2019, is affirmed insofar as appealed from, with costs.

In March 2008, the plaintiff's predecessor in interest, First United Mortgage Banking Corp. (hereinafter First United), commenced this action to foreclose a mortgage against the defendant Manuel Valdivieso (hereinafter the defendant), among others. According to the affidavit of service, the defendant was personally served with the summons and complaint. The defendant failed to answer the complaint. In December 2013, First United moved, inter alia, for leave to enter a default judgment and for an order of reference. In an order dated November 12, 2014, the Supreme Court denied those branches of First United's motion for failure to comply with RPAPL 1303, and substituted Wilmington Trust Company as the plaintiff. In February 2014, the defendant had cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction; however, the defendant's cross motion was "marked off" the calendar in June 2014. In September 2015, counsel for the defendant filed a notice of appearance. Thereafter, in October 2015, the defendant transferred the subject premises to Evergreen 2014, LLC.

In January 2016, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The defendant opposed the motion and cross-moved, among other things, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, resulting in a hearing to determine the validity of service of process. At the conclusion of the hearing, the Supreme Court determined that service was defective. In an order dated September 13, 2017, the court, inter alia, granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

In March 2018, the plaintiff moved, inter alia, for leave to renew its opposition to the defendant's cross motion. The defendant opposed the motion. In an order dated February 6, 2019, the Supreme Court, inter alia, granted the plaintiff leave to renew its opposition to the defendant's prior cross motion, and, upon renewal, inter alia, vacated the prior determination in the order dated September 13, 2017, granting that branch of the defendant's prior cross motion, and thereupon, denied that branch of the prior cross motion. The defendant appeals.

While the defendant's conveyance of his interest in the subject property to a third party during the pendency of this foreclosure action effectively divested the defendant of standing to challenge the plaintiff's requests for relief (see Moret, LLC v. NewBank, 194 A.D.3d 809, 810, 143 N.Y.S.3d 902 ; U.S. Bank N.A. v. Davids, 188 A.D.3d 943, 944, 132 N.Y.S.3d 315 ), contrary to the plaintiff's assertion, so long as the defendant remained a named party in the action, he retained the right to contest the Supreme Court's jurisdiction over him pursuant to CPLR 3211(a)(8) (see Deutsche Bank Natl. Trust Co. v Patrick, 173 A.D.3d 973, 974, 105 N.Y.S.3d 85 ).

However, contrary to the defendant's contention, he waived his defense of lack of...