GMAC Mortg., LLC v. Winsome Coombs

• Citation: 136 N.Y.S.3d 439,191 A.D.3d 37
• Decision Date: 25 November 2020
• Docket Number: Index No. 29971/08,2017–08030
• Parties: GMAC MORTGAGE, LLC, Respondent, v. WINSOME COOMBS, Appellant, et al., Defendants.
• Court: New York Supreme Court Appellate Division

191 A.D.3d 37

136 N.Y.S.3d 439

GMAC MORTGAGE, LLC, Respondent,

v.WINSOME COOMBS, Appellant, et al., Defendants.

2017–08030

Index No. 29971/08

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

Argued - October 15, 2019

November 25, 2020

Chidi Eze, Brooklyn, NY, for appellant.

Ras Boriskin, LLC, Westbury, NY, for respondent.

SHERI S. ROMAN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

MILLER, J.

This appeal requires us to address a new statute, RPAPL 1302–a (as added by L 2019, ch 739, § 1), and consider its impact on the affirmative defense of lack of standing and the operation of the waiver provisions contained in CPLR 3211(e). We conclude that, in this case, the Supreme Court should have permitted the defendant to raise the affirmative defense of lack of standing and to amend his answer to include that defense, even though he failed to affirmatively plead it in his answer. However, since the plaintiff nevertheless established its entitlement to summary judgment on the issue of standing and on the complaint, we affirm the order appealed from.

In February 2007, the defendant Winsome Coombs (hereinafter the defendant) executed a note in the sum of $419,225 in favor of Quicken Loans, Inc. The note was secured by a mortgage on residential property in Brooklyn. In November 2008, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant interposed a verified answer, but did not assert that the plaintiff lacked standing to commence this action.

In October 2012, the defendant moved to dismiss the complaint, inter alia, on the ground that the plaintiff lacked standing to commence this action. The plaintiff separately moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant.

In an order dated December 18, 2013, the Supreme Court denied the defendant's motion and the plaintiff's motion. The plaintiff subsequently moved for leave to reargue its prior motion. The defendant opposed the plaintiff's motion for leave to reargue, contending, among other things, that the plaintiff lacked standing to commence this action.

In an order dated June 19, 2017, the Supreme Court granted the plaintiff's motion for leave to reargue and, upon reargument, granted the plaintiff's prior motion. The court did not address the merits of the standing defense that had been raised by the defendant in opposition to the plaintiff's motion for leave to reargue, finding that the defense had been waived by the defendant's failure to include it in the verified answer. The defendant appeals from the order dated June 19, 2017. We affirm.

" CPLR 3018, which governs responsive pleadings, draws a distinction between denials and affirmative defenses" ( US Bank N.A. v. Nelson, 169 A.D.3d 110, 113, 93 N.Y.S.3d 138 ). "Denials generally relate to allegations setting forth the essential elements that must be proved in order to sustain the particular cause of action" and "[t]hus, a mere denial of one or more elements of the cause of action will suffice to place them in issue" ( id. at 113, 93 N.Y.S.3d 138 ).

Conversely, a defendant must plead, as an affirmative defense, "all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading" ( CPLR 3018[b] ; see U.S. Bank N.A. v. Nelson, 169 A.D.3d at 113, 93 N.Y.S.3d 138 ). Accordingly, where a defendant seeks to inject into the litigation "matters [that] are not the plaintiff's burden to prove as part of the cause of action," those matters must be affirmatively pleaded as defenses (Siegel & Connors, N.Y. Prac § 223 [6th ed July 2020 Update]; see CPLR 3014 ; US Bank N.A. v. Nelson, 169 A.D.3d at 113, 93 N.Y.S.3d 138 ; see also 5 Weinstein–Korn–Miller, N.Y. Civ Prac: CPLR ¶ 3018.02).

"Failure to plead a defense that must be pleaded affirmatively under CPLR 3018(b) is a waiver of that defense, unless it is raised by a motion under CPLR 3211(a)" (5 Weinstein–Korn–Miller, N.Y. Civ Prac: CPLR ¶ 3018.18; see Munson v. New York Seed Improvement Coop., 64 N.Y.2d 985, 986–987, 489 N.Y.S.2d 39, 478 N.E.2d 180 ; DeLuca v. Pecoraro, 109 A.D.3d 636, 637, 970 N.Y.S.2d 822 ; Rooney v. Slomowitz, 11 A.D.3d 864, 867, 784 N.Y.S.2d 189 ; Counties of Warren & Washington Indus. Dev. Agency v. Boychuck, 109 A.D.2d 1024, 1026, 487 N.Y.S.2d 139 ; De Lisa v. Amica Mut. Ins. Co., 59 A.D.2d 380, 382, 399 N.Y.S.2d 909 ; A.A. Sutain, Ltd. v. Montgomery Ward & Co., 22 A.D.2d 607, 609–610, 257 N.Y.S.2d 724, affd 17 N.Y.2d 776, 270 N.Y.S.2d 626, 217 N.E.2d 674 ). However, "[s]uch a waiver can be retracted by amendment of the answer" so as to include the omitted defense ( Surlak v. Surlak, 95 A.D.2d 371, 383, 466 N.Y.S.2d 461 ; see CPLR 3025 ; cf. Furlo v. Cheek, 20 A.D.2d 939, 940, 248 N.Y.S.2d 947 ; see generally 5 Weinstein–Korn–Miller, N.Y. Civ Prac: CPLR ¶ 3018.18).

If a defendant fails to amend the answer within the time prescribed by CPLR 3025(a), the defendant may amend the answer to include a new defense pursuant to CPLR 3025(b) "at any time by leave of court or by stipulation of all parties" ( CPLR 3025[b] ). The statute directs that "[l]eave shall be freely given upon such terms as may be just including the granting of costs and continuances" ( CPLR 3025[b] ; see Murray v. City of New York, 43 N.Y.2d 400, 404–406, 401 N.Y.S.2d 773, 372 N.E.2d 560 ).

CPLR 3211(e), however, places important limitations on a defendant's ability to retract a waiver of certain affirmative defenses through the amendment of an answer pursuant to CPLR 3025(b) (see generally Siegel, N.Y. Prac § 275 at 473 [5th ed]). Although this subdivision uses the same term—"waived" —in three separate sentences, the various types of waivers occasioned by CPLR 3211(e) are not uniformly applied. Indeed, as the case law illustrates, the effect of such a waiver may vary depending on the nature of the defense that was waived.

For example, CPLR 3211(e) provides that

"[a]n objection based upon a ground specified in [ CPLR 3211(a)(8) or (9) ] is waived if a party moves on any of the grounds set forth in [ CPLR 3211(a) ] without raising such objection or if, having made no objection under [ CPLR 3211(a) ], he or she does not raise such objection in the responsive pleading."

CPLR 3211(a)(8) and (9) include defenses relating to personal and in rem jurisdiction.

The Court of Appeals has held that once a jurisdictional defense listed in CPLR 3211(a)(8) or (9) has been "waived" under CPLR 3211(e), the resulting waiver may not be retracted through subsequent amendment to the answer pursuant to CPLR 3025(b) (see Addesso v. Shemtob, 70 N.Y.2d 689, 690, 518 N.Y.S.2d 793, 512 N.E.2d 314 ; Boulay v. Olympic Flame, 165 A.D.2d 191, 194, 565 N.Y.S.2d 905 ; cf. Iacovangelo v. Shepherd, 5 N.Y.3d 184, 186, 800 N.Y.S.2d 116, 833 N.E.2d 259 ; Ficorp, Ltd. v. Gourian, 263 A.D.2d 392, 392–393, 693 N.Y.S.2d 37 ). Accordingly, "[w]hile permission to amend an answer is to be freely given pursuant to CPLR 3025(b), the waiver of a jurisdictional defense [listed in CPLR 3211(a)(8) or (9) ] cannot be nullified by a subsequent amendment to a pleading adding the missing affirmative defense" ( McGowan v. Hoffmeister, 15 A.D.3d 297, 297, 792 N.Y.S.2d 381 ; see Addesso v. Shemtob, 70 N.Y.2d at 690, 518 N.Y.S.2d 793, 512 N.E.2d 314 ).

The "objections of personal or [in] rem jurisdiction ... are deemed so fundamental" that they are irretrievably waived if the defendant makes a motion pursuant to CPLR 3211(a) without raising those threshold jurisdictional defenses (Siegel & Connors, N.Y. Prac § 274 [6th ed]; see CPLR 3211[e] ; Competello v. Giordano, 51 N.Y.2d 904, 905, 434 N.Y.S.2d 976, 415 N.E.2d 965 ). Indeed, "[t]he purpose of [this] waiver provision of [ CPLR 3211(e) ] is to prevent the defendant from wasting both the ‘court's or the plaintiff's time on any 3211 motion on any ground at all unless on that motion [she or] he joins [those] jurisdictional [defenses]’ " ( Competello v. Giordano, 51 N.Y.2d at 905, 434 N.Y.S.2d 976, 415 N.E.2d 965, quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:59 at 63). The purpose underlying that provision would obviously be frustrated if a defendant could retract a waiver of these jurisdictional defenses "at any time" by amending its answer to include them ( CPLR 3025[b] ).

Similarly, another provision of CPLR 3211(e) provides that

"an objection that the summons and complaint ... was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship"

(cf. Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 327, 921 N.Y.S.2d 619, 946 N.E.2d 717 ). The purpose of the 1996 amendment to CPLR 3211(e), which added the 60–day time limit, was " ‘to require a party with a genuine objection to service to deal with the issue promptly and at the outset of the action ... ferret out unjustified objections and ... provide for the prompt resolution of those that have merit’ " ( Wade v. Byung Yang Kim, 250 A.D.2d 323, 325, 681 N.Y.S.2d 355, quoting Senate Introducer's Mem in Support, Bill Jacket, L 1996, ch 501 at 5; see U.S. Bank N.A. v. Roque, 172 A.D.3d 948, 951, 101 N.Y.S.3d 165 ; Deutsche Bank Natl. Trust Co. v. Acevedo, 157 A.D.3d 859, 861, 69 N.Y.S.3d 693 ).

In contrast to the two provisions noted above, a third waiver provision contained in CPLR 3211(e) provides that "[a]ny objection or defense based upon a ground set forth in [ CPLR 3211(a)(1), (3), (4), (5), and (6) ] is waived unless raised either by such motion or in the responsive pleading" (see McLean v. Sachem Cent. Sch. Dist., 186 A.D.3d 470, 126 N.Y.S.3d 391 ; M & E 73–75, LLC v. 57 Fusion LLC, 189 A.D.3d 1, 128 N.Y.S.3d 200 [1st Dept.] ; Bonanni v....