Home Savings of America v. Gkanios

233 A.D.2d 422, 650 N.Y.S.2d 756, 1996 N.Y. App. Div. LEXIS 12043

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1996
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Marie Gkanios appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), entered August 3, 1995, as denied her motion to dismiss the complaint for failure to join a necessary party.

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

In an action to foreclose a mortgage, all parties having an interest, including persons holding title to the subject premises, must be made a "party defendant to the action” (RPAPL 1311 [1]; see, Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400, 403). Contrary to the appellant’s contention, her husband, the defendant Fotios Gkanios, was made a party to the instant foreclosure action. The plaintiff named Fotios Gkanios as a defendant and caused process to be served on him at the marital residence by substitute service (see, CPLR 308 [4]). Moreover, Fotios Gkanios has neither served an answer nor otherwise challenged the propriety of that service.

The appellant lacks standing to challenge whether Fotios Gkanios was properly served with process since such claim is personal in nature and may only be raised by him (see, Matter of Staiano, 160 Misc 2d 494, 497-498). Likewise, the appellant lacks standing to challenge the validity of the notice of appearance submitted on behalf of Fotios Gkanios. Copertino, J. P., Santucci, Joy and Goldstein, JJ., concur.