Deustche Bank Natl. Trust Co. v. Procel

192 N.Y.S.3d 107, 217 A.D.3d 623, 2023 NY Slip Op 03542

Opinion

Deustche Bank Natl. Trust Co. v Procel (2023 NY Slip Op 03542)

Deustche Bank Natl. Trust Co. v Procel

2023 NY Slip Op 03542

Decided on June 29, 2023

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 and Entered: June 29, 2023
Before: Kapnick, J.P., Friedman, Gesmer, González, Higgitt, JJ.

Index No. 380871/11 Appeal No. 567 Case No. 2022-00962

[*1]Deustche Bank National Trust Company etc., Plaintiff-Appellant,

v

Bernarda Procel et al., Defendants-Respondents, Continente Corporation et al., Defendants.

Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury (Joseph F. Battista of counsel), for appellant.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 6, 2016, which denied plaintiff's motion for a judgment of foreclosure and sale, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

The court erred in finding that triable issues of fact precluded granting plaintiff a judgment of foreclosure and sale. Having failed to timely answer the complaint or make a pre-answer motion to dismiss, and having made no attempt to vacate their default or provide a reasonable excuse for the default, defendants waived their defense that plaintiff lacked standing to bring this action (see U.S. Bank N.A. v Goldberger, 211 AD3d 1077, 1078 [2d Dept 2022]; Aurora Loan Services, LLC v Jemal, 205 AD3d 661, 663 [2d Dept 2022]). Moreover, defendants' default precluded them from asserting that plaintiff's assignor violated Banking Law § 6-l (see U.S. Bank N.A. v Sherwood, 181 AD3d 469 [1st Dept 2020]; Whittemore v Yeo, 112 AD3d 475, 476 [1st Dept 2013]), which, in any event, was not in effect in that form at the time the loan was made in 2006 (Endeavor Funding Corp. v Allen, 102 AD3d 593, 594 [1st Dept 2013]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 29, 2023