Deutsche Bank Nat'l Trust Co. v. Simpson

• Docket Number: 2021–00356,Index No. 614499/16
• Decision Date: 28 September 2022
• Citation: 208 A.D.3d 1305,175 N.Y.S.3d 312
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Michael SIMPSON, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1305
175 N.Y.S.3d 312

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,
v.
Michael SIMPSON, appellant, et al., defendants.

2021–00356
Index No. 614499/16

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

Submitted—April 22, 2022
September 28, 2022

175 N.Y.S.3d 313

Brian McCaffrey Attorney at Law, P.C., Jamaica, NY, for appellant.

Davidson Fink LLP, Rochester, NY (Todd Z. Marks of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

208 A.D.3d 1305

In an action to foreclose a mortgage, the defendant Michael Simpson appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated November 9, 2020. The order, insofar as

175 N.Y.S.3d 314

appealed from, denied those branches of that defendant's motion which were (1) pursuant to CPLR 5015(a)(4) to vacate so much of an order of the same court dated May 10, 2019, as granted those branches of the plaintiff's unopposed motion which were for leave to enter a default judgment against him and for an order of reference, and an order and judgment of foreclosure and sale (one paper) of the same court entered October 1, 2019, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, or, in the alternative, in effect, pursuant to CPLR 317 to vacate his default in appearing or answering the complaint, and (2) pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.

ORDERED that the order dated November 9, 2020, is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendant Michael Simpson which were pursuant to CPLR 5015(a)(4) to vacate so much of the order dated May 10, 2019, as granted those branches of the plaintiff's motion which were for leave to enter a default judgment

208 A.D.3d 1306

against him and for an order of reference, and the order and judgment of foreclosure and sale, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, or, in the alternative, in effect, pursuant to CPLR 317 to vacate his default in appearing or answering the complaint; as so modified, the order dated November 9, 2020, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant Michael Simpson was properly served with process, and a new determination thereafter of those branches of his motion which were pursuant to CPLR 5015(a)(4) to vacate so much of the order dated May 10, 2019, as granted those branches of the plaintiff's motion which were for leave to enter a default judgment against him and for an order of reference, and the order and judgment of foreclosure and sale, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, or, in the alternative, in effect, pursuant to CPLR 317 to vacate his default in appearing or answering the complaint.

On September 15, 2016, the plaintiff commenced this action to foreclose a mortgage...