Bank v. Bowie

• Decision Date: 15 November 2011
• Citation: 932 N.Y.S.2d 702,89 A.D.3d 931,2011 N.Y. Slip Op. 08352
• Parties: WELLS FARGO BANK, N.A., etc., respondent,v.Patrick BOWIE, et al., defendants,Fircy A. Nunez, etc., appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 931

932 N.Y.S.2d 702

2011 N.Y. Slip Op. 08352

WELLS FARGO BANK, N.A., etc., respondent,

v.Patrick BOWIE, et al., defendants,Fircy A. Nunez, etc., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 15, 2011.

OPINION TEXT STARTS HEREBailly and McMillan, LLP, White Plains, N.Y. (John J. Bailly of counsel), for appellant.Steven J. Baum, P.C., Amherst, N.Y. (Casey E. Callanan and Jason B. Desiderio of counsel), for respondent.

In an action, inter alia, to foreclose a mortgage, the defendant Fircy A. Nunez appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated June 21, 2010, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, and denied his cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

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

The defendant Fircy A. Nunez (hereinafter the appellant) took title to the real property at issue in this matter, subject to the mortgage given by the defendant Patrick Bowie and held by the plaintiff. The plaintiff subsequently brought this foreclosure action on that mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellant, and the appellant cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. The Supreme Court, among other things, granted the aforementioned branch of the plaintiff's motion and denied the appellant's cross motion. The only contention asserted by the appellant on this appeal is that the plaintiff was not entitled to summary judgment, and that the Supreme Court should have dismissed the complaint, because service upon Bowie was not properly made. The appellant, however, lacks standing to contest the validity of service upon Bowie inasmuch as that claim is personal to Bowie, and thus may be raised, if at all, only by Bowie ( see NYCTL 1996–1 Trust v. King, 13 A.D.3d 429, 430, 787 N.Y.S.2d 61; NYCTL 1996–1 Trust v. King, 304 A.D.2d 629, 758 N.Y.S.2d 374; Home Sav. of Am. v. Gkanios, 233 A.D.2d 422, 423, 650 N.Y.S.2d 756). Accordingly, the appellant's contention affords him no basis for relief. We note that the appellant does not claim on appeal that the plaintiff did not properly serve him with the complaint.

DILLON, J.P., BALKIN, ENG and COHEN, JJ., concur.

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