Deutsche Bank Nat'l Trust Co. v. Benitez
| Decision Date | 22 January 2020 |
| Docket Number | Index No. 11163/09,2017–01288,2017–05876 |
| Citation | 179 A.D.3d 891,118 N.Y.S.3d 173 |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent, v. Ana BENITEZ, et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
179 A.D.3d 891
118 N.Y.S.3d 173
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent,
v.
Ana BENITEZ, et al., Appellants, et al., Defendants.
2017–01288
2017–05876
Index No. 11163/09
Supreme Court, Appellate Division, Second Department, New York.
Argued - September 17, 2019
January 22, 2020
Christopher Thompson, West Islip, NY, for appellants.
Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas and John Ricciardi of counsel), for respondent.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, (1) the defendants Ana Benitez and Edwin Hernandez appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 28, 2016, and (2) the defendant Ana Benitez appeals from an order of the same court entered May 3, 2017. The order entered October 28, 2016, denied the motion of the defendants Ana Benitez and Edwin Hernandez pursuant to CPLR 317 and 5015(a)(1), (3), and (4) to vacate a judgment of foreclosure and sale of the same court entered May 14, 2015, upon their failure to appear or answer the complaint, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them or, in the alternative, pursuant to CPLR 3012(d)
to compel the plaintiff to accept their late answer. The order entered May 3, 2017, denied those defendants' motion for leave to reargue their prior motion.
ORDERED that the appeal from the order entered May 3, 2017, is dismissed, as no appeal lies from an order denying reargument (see Viola v. Blanco, 1 A.D.3d 506, 507, 767 N.Y.S.2d 248 ; Matter of Robinson, 30 A.D.2d 702, 291 N.Y.S.2d 919 ); and it is further,
ORDERED that the order entered October 28, 2016, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action against Ana Benitez and Edwin Hernandez (hereinafter together the defendants), among others, to foreclose a mortgage encumbering certain property in Hempstead. The defendants were allegedly served at the mortgaged premises pursuant to CPLR 308(2), and they failed to answer the complaint or appear in the action.
On May 14, 2015, the Supreme Court entered a judgment of foreclosure and sale, inter alia, directing the sale of the subject property. Thereafter, the defendants moved, among other things, pursuant to CPLR 317 and 5015(a)(1), (3), and (4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them or, in the alternative, pursuant to CPLR 3012(d) to compel the plaintiff to accept their late answer. In an order entered October 28, 2016, the court denied the motion. The defendants appeal.
"The burden of proving that personal jurisdiction has been acquired over a defendant ... rests with the plaintiff" ( JPMorgan Chase Bank, N.A. v. Grinkorn, 172 A.D.3d 1183, 1185, 102 N.Y.S.3d 210 ; see Wells...
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