Deutsche Bank National Trust Co. v. Ned

Appellate Division of the Supreme Court of New York

Deutsche Bank National Trust Co. v. Ned

114 A.D.3d 524, 981 N.Y.S.2d 391

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 18, 2014

StatusPublished

This text of 114 A.D.3d 524 (Deutsche Bank National Trust Co. v. Ned) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deutsche Bank National Trust Co. v. Ned, 114 A.D.3d 524, 981 N.Y.S.2d 391 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 21, 2012, which granted plaintiffs motion to vacate a prior order granting defendant Michelle A. Ned’s motion to dismiss the complaint and vacating the Judgment of Foreclosure and Sale on default, and upon reconsideration, denied defendant’s motion, and reinstated the Judgment of Foreclosure and Sale, unanimously affirmed, without costs.

In this mortgage foreclosure action, the motion court properly denied defendant’s motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.

We have considered defendant’s remaining contentions and [525]*525find them unavailing. Concur — Sweeny, J.E, Renwick, Moskowitz, Richter and Gische, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 21, 2012, which granted plaintiffs motion to vacate a prior order granting defendant Michelle A. Ned’s motion to dismiss the complaint and vacating the Judgment of Foreclosure and Sale on default, and upon reconsideration, denied defendant’s motion, and reinstated the Judgment of Foreclosure and Sale, unanimously affirmed, without costs.

In this mortgage foreclosure action, the motion court properly denied defendant’s motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.

We have considered defendant’s remaining contentions and [525]*525find them unavailing. Concur — Sweeny, J.E, Renwick, Moskowitz, Richter and Gische, JJ.

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Bluebook (online)

114 A.D.3d 524, 981 N.Y.S.2d 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deutsche-bank-national-trust-co-v-ned-nyappdiv-2014.

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