Citmortgage, Inc. v. Barton

• Docket Number: 2019–13439,Index No. 509524/16
• Decision Date: 18 January 2023
• Citation: 212 A.D.3d 706,183 N.Y.S.3d 108
• Parties: CITMORTGAGE, INC., respondent, v. Nathaniel BARTON III, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 706
183 N.Y.S.3d 108

CITMORTGAGE, INC., respondent,
v.
Nathaniel BARTON III, appellant, et al., defendants.

2019–13439
Index No. 509524/16

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

Submitted—November 3, 2022
January 18, 2023

183 N.Y.S.3d 110

Michael Kennedy Karlson, New York, NY, for appellant.

Akerman, LLP, New York, NY (Jordan M. Smith and James Ng of counsel), for respondent.

COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

212 A.D.3d 706

In an action to foreclose a mortgage, the defendant Nathaniel Barton III appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 16, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Nathaniel Barton III and for an order of reference, and denied that defendant's cross motion, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction and to cancel a notice of pendency filed against the subject property, or, in the alternative, in effect, pursuant to CPLR 3012(d) for leave to interpose a late answer.

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

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Nathaniel Barton III

212 A.D.3d 707

(hereinafter the defendant). After the defendant failed to answer the complaint, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. The defendant opposed the motion, and cross-moved, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal

183 N.Y.S.3d 111

jurisdiction and to cancel a notice of pendency filed against the subject property or, in the alternative, in effect, pursuant to CPLR 3012(d) for leave to interpose a late answer. In an order dated September 16, 2019, the Supreme Court, among other things, granted those branches of the plaintiff's motion and denied the defendant's cross motion, stating that the defendant had waived his jurisdictional defense. On this appeal from the order dated September 16, 2019, we affirm, but for a reason different from that articulated by the Supreme Court.

As a threshold matter, the plaintiff demonstrated its entitlement to a default judgment against the defendant pursuant to CPLR 3215 and an order of reference. The plaintiff submitted proof of service of the summons and the complaint, proof of the facts constituting the causes of action, including that the defendant defaulted on his payment obligations, and proof of the defendant's default in answering (see id. § 3215[f] ; Rattner v. Fessler, 202 A.D.3d 1011, 1014, 163 N.Y.S.3d 575 ; Nationstar Mtge., LLC v. Esdelle, 186 A.D.3d 1384, 1387, 130 N.Y.S.3d 80 ).

"Generally, to successfully oppose a facially adequate motion for leave to enter a default judgment and for an order of reference based on...