Bank of N.Y. Mellon Trust Co. v. Ungar Family Realty Corp.
Decision Date | 13 November 2013 |
Citation | 2013 N.Y. Slip Op. 07441,974 N.Y.S.2d 584,111 A.D.3d 657 |
Parties | BANK OF NEW YORK MELLON TRUST COMPANY, etc., respondent, v. UNGAR FAMILY REALTY CORP., appellant, et al., defendants. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Jeremy Rosenberg, New York, N.Y., for appellant.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Lisa Fried, and Chava Brandriss of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RUTH C. BALKIN, and SHERI S. ROMAN, JJ.
In an action to foreclose a mortgage, the defendant Ungar Family Realty Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated November 28, 2011, as denied those branches of its cross motion which were to vacate a judgment of foreclosure and sale of the same court dated April 22, 2010, and dismiss the complaint insofar as asserted against it, or in the alternative, in effect, to vacate so much of the sixth decretal paragraph of the judgment of foreclosure and sale as followed the phrase “executing the proper conveyance to the purchaser.”
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion which was, in effect, to vacate so much of the sixth decretal paragraph of the judgment of foreclosure and sale as followed the phrase “executing the proper conveyance to the purchaser” and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The defendant Ungar Family Realty Corp. (hereinafter UFRC) contends that the action should be dismissed insofar as asserted against it for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action ( see Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 507, 969 N.Y.S.2d 470;Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532). The Supreme Court properly rejected this claim because UFRC waived it by failing to challenge the plaintiff's standing in its answer or in a pre-answer motion to dismiss ( seeCPLR 3211[e]; U.S. Bank N.A. v. Denaro, 98 A.D.3d 964, 964–965, 950 N.Y.S.2d 581;Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247).
UFRC also contends that the Supreme Court lacked jurisdiction to proceed because the original signer of the note and mortgage, Jakab Ungar, died before the action was commenced and no representative of the estate was...
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