Hsbc Bank U.S. v. Schwartz

• Decision Date: 25 October 2011
• Citation: 931 N.Y.S.2d 528,88 A.D.3d 961,2011 N.Y. Slip Op. 07608
• Parties: HSBC BANK USA, NA, etc., respondent,v.Samuel SCHWARTZ, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 961
931 N.Y.S.2d 528
2011 N.Y. Slip Op. 07608

HSBC BANK USA, NA, etc., respondent,
v.
Samuel SCHWARTZ, appellant, et al., defendants.

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

Oct. 25, 2011.

Jeffrey Seigel, Hempstead, N.Y. (Michael Wigutow of counsel), for appellant.Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for respondent.

[88 A.D.3d 961] In an action to foreclose a mortgage, the defendant Samuel Schwartz appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered July 14, 2009, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him and to dismiss his answer and counterclaims.

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

The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellant and to dismiss his answer and counterclaims. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting a mortgage, an unpaid note, and an affidavit of its employee, who averred that she reviewed the relevant papers and attested to the appellant's default ( see JP Morgan Chase Bank, N.A. v. Agnello, 62 A.D.3d 662, 663, 878 N.Y.S.2d 397; Coppa v. Fabozzi, 5 A.D.3d 718, 773 N.Y.S.2d 604; EMC Mtge. Corp. v. Riverdale Assoc., 291 A.D.2d 370, 737 N.Y.S.2d 114). In opposition, the appellant failed to raise a triable issue of fact.

Contrary to the appellant's contention, he waived the defense of lack of standing, having failed to interpose an answer which asserted the defense or to file a timely pre-answer motion raising that defense ( see U.S. Bank N.A. v. Eaddy, 79 A.D.3d 1022, 914 N.Y.S.2d 901; Wells Fargo Bank Minn., N.A. v. Perez, 70 A.D.3d 817, 817–818, 894 N.Y.S.2d 509, cert. denied ––– U.S. ––––, 131 S.Ct. 648, 178 L.Ed.2d 480; Deutsche Bank Natl. Trust Co. v. Jackson, 68 A.D.3d 805, 889 N.Y.S.2d 477; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135; HSBC Bank, USA v. Dammond, 59 A.D.3d 679, 875 N.Y.S.2d 490; [88 A.D.3d 962] Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244, 837 N.Y.S.2d 247).

The appellant's remaining contention is without merit.

ANGIOLILLO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.