Household Finance Realty Corporation of New York v. Emanuel, 2408.

• Decision Date: 09 December 2003
• Docket Number: 2408.
• Citation: 2 A.D.3d 192,769 N.Y.S.2d 511,2003 NY Slip Op 19243
• Parties: HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, Respondent-Appellant, v. DENZIL EMANUEL et al., Defendants, and FIRST NATIONAL FUNDING CORPORATION OF NEW YORK, Appellant-Respondent. VITO CHIRICO et al., Proposed Intervenors-Appellants.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 192

769 N.Y.S.2d 511

2003 NY Slip Op 19243

HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, Respondent-Appellant, v. DENZIL EMANUEL et al., Defendants, and FIRST NATIONAL FUNDING CORPORATION OF NEW YORK, Appellant-Respondent VITO CHIRICO et al., Proposed Intervenors-Appellants.

2408.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 9, 2003.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered July 31, 2002, which, in this mortgage foreclosure action, inter alia, denied the motion of LaSalle National Bank (LaSalle) to dismiss the complaint for lack of personal jurisdiction, or, in the alternative, to vacate the judgment of foreclosure and sale entered, on default, on or about May 3, 2001, and denied plaintiff's cross motion for, inter alia, leave to amend all pleadings served in this action, nunc pro tunc, to reflect that the proper name of the defendant that assigned LaSalle its mortgage on the foreclosed premises is First National Funding Corporation of America (First America), and not First National Funding Corporation of New York, unanimously modified, on the law, to grant the cross motion insofar as to direct that the pleadings be amended to reflect the assignor defendant's proper name, and otherwise affirmed, without costs.

The motion court properly denied LaSalle's motion to dismiss the complaint for lack of personal jurisdiction over its assignor. Plaintiff's affidavit of service states that it served the summons and complaint on "First National Funding Corporation of America Sued Herein as First National Funding" by personally serving the Secretary of State pursuant to Business Corporation Law § 306, and the Department of State's certification of service indicates that First America was served via certified mail, return receipt requested, at the address where First America has maintained offices since 1998. Accordingly, since First America was in fact served with plaintiff's summons and complaint, plaintiff's misstatement of defendant's name in the summons and complaint amounted to no more than an irregularity and did not deprive the motion court of jurisdiction over the proper party (see Marine Midland Realty Credit Corp. v Welbilt Corp., 145 AD2d 84, 89 [1989]).

The motion court also correctly denied LaSalle's application to vacate the underlying judgment of foreclosure and sale entered on default because there was no demonstrable merit to LaSalle's defense to the...