Southstar III, LLC v. Enttienne

120 A.D.3d 1332, 992 N.Y.S.2d 548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 2014
• Docket: 2013-06470
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Carol Enttienne and Nicholas Pile appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated March 6, 2013, as denied their motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked standing to commence the action.

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

In April 2008, the plaintiff commenced this action to foreclose a mortgage. The defendants Carol Enttienne and Nicholas Pile (hereinafter together the defendants) failed to timely appear or answer the complaint (see CPLR 320 [a]). In April 2011, the defendants moved to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked standing to commence the action. In the order appealed from, the Supreme Court, among other things, denied the defendants’ motion.

Since the defendants did not answer the complaint and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing (see Bank of N.Y. v Cepeda, 120 AD3d 451 [2d Dept 2014]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821 [2014]; Freedom Mtge. Corp. v Toro, 113 AD3d 815 [2014]). Prior to making their instant motion to dismiss the complaint on the ground that the plaintiff lacked standing, the defendants did not seek an extension of time to answer or appear in this action (see CPLR 3012 [d]), or request an extension of time within which to serve and file a pre-answer motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them. Further, they did not attempt to show good cause for their delay, or even address the timeliness of their motion (see CPLR 2004).

The defendants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked standing to commence the action (cf. U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-695 [2012]; Holubar v Holubar, 89 AD3d 802 [2011]; McGee v Dunn, 75 AD3d 624 [2010]).

Balkin, J.P, Leventhal, Maltese and LaSalle, JJ., concur.