HSBC Bank USA N.A. v. Thomas

92 A.D.3d 531, 939 N.Y.2d 346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2012
• Status: Published

Opinion

The defendants in this foreclosure action include the mortgagor, Janet Thomas, and the property’s former owners and current occupants, Maurice Thomas and Sharon Thomas. This appeal concerns the motion by Maurice and Sharon Thomas to vacate the judgment of foreclosure entered against them following their default on plaintiffs summary judgment motion.

While Janet Thomas defaulted by failing to answer the complaint, an answer was served on behalf of Maurice and Sharon Thomas, by attorney Ian Belinfanti. One of the defenses asserted in that answer was a lack of personal jurisdiction; however, inasmuch as no motion was made within 60 days based on improper service of process, that defense must be deemed waived (CFLR 3211 [e]). Nevertheless, Maurice and Sharon Thomas contend that the interposed answer must be disregarded and their claim that they were never served must be addressed, because Ian Belinfanti was never retained or authorized to represent them.

We reject their argument. Their submissions fail to justify such a negation of the answer. In order to explain what occurred, they assert that Belinfanti was representing them in a separate dispute with Janet Thomas, and that when they received mail addressed to Janet Thomas, they forwarded it to Belinfanti for him to handle; they suggest that this mail must have been the summons and complaint, and imply that Belinfanti must have interpreted their forwarding it to him as a retention of his services in this foreclosure action. In the face of their acknowledgment that Belinfanti was representing them in the dispute with Janet Thomas, their suggestions and speculation are simply insufficient to permit any possible finding that Belinfanti appeared and filed an answer on their behalf without authorization. Concur — Saxe, J.E, Friedman, Freedman, AbdusSalaam, JJ.