Federal Home Loan Mortgage Corp. v. Torres

238 A.D.2d 306, 656 N.Y.S.2d 297, 1997 N.Y. App. Div. LEXIS 3407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1997
• Status: Published

Opinion

—In a mortgage foreclosure action, the defendants Edward S. Raskin and Rochelle E. Raskin appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gerard, J.), entered March 6, 1996, as granted the plaintiffs motion for leave to renew a prior motion for summary judgment and, upon renewal, granted summary judgment to the plaintiff.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff’s prior motion for summary judgment was denied because the plaintiff failed to include a legible copy of an assignment of the mortgage in question, and failed to include an affidavit by a person with knowledge attesting to the default of the mortgagor. Under the circumstances of this case, the court properly exercised its discretion in granting the plaintiff’s motion for leave to renew, which corrected the deficiencies in the original motion papers (see, Canzoneri v Wigand Corp., 168 AD2d 593).

The appellants’ contentions regarding improper service of the original summons and complaint and the amended summons and complaint were waived by their answer to the amended complaint in which they failed to challenge personal jurisdiction (see, Keary v Great Atl. & Pac. Tea Co., 96 AD2d 499). Additionally, that the appellants may not have received service of the supplemental amended summons and complaint is, at worst, an irregularity which the court may, and in this case should, ignore, as no prejudice resulted (see, Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 607-608).

The appellants’ remaining contentions are without merit. Bracken, J. P., Friedmann, Florio and McGinity, JJ., concur.