SRMOF II 2012-I Trust v. Tella

139 A.D.3d 599, 33 N.Y.S.3d 25

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2016
• Docket: 381099/12 1265N 1264N
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2014, which, inter alia, granted plaintiffs motion for a default judgment, and order, same court and Justice, entered September 22, 2015, which denied plaintiffs motion to remove defendant Mercy Telia as a necessary party to this action, and proceed without her, unanimously affirmed, without costs.

Plaintiffs excuse for its delay in moving for a default judgment indicates that there was activity well within the one-year period specified in CPLR 3215 (c) (see Pappoe v Custodio, 156 AD2d 211 [1st Dept 1989]). Defendant Telia offers no excuse for her default in answering the complaint, and her attempt to challenge the sufficiency of the documents underlying plaintiffs motion for a default judgment is unpreserved and in any event unavailing. Plaintiffs proof of service, the summons and complaint, and Tella’s default in answering when served with process, in conjunction with “[the] affidavit of merit by the current loan servicer/assignee of the note and mortgage, who averred facts which constitute cognizable claims for foreclosure and sale against the obligor/mortgagor defendant! ],” are sufficient to support plaintiff’s motion (BAC Home Loan Servicing, LP v Bertram, 51 Misc 3d 770, 783-784 [Sup Ct, Suffolk County 2016]; see also HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206 [2d Dept 2015]).

Plaintiff failed to demonstrate that it waived its right to assert a deficiency judgment against Telia, and, thus, failed to establish that Telia is not a necessary or indispensable party who can be severed from these proceedings (see Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805, 805 [2d Dept 1981]).

Concur — Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels and Kahn, JJ.