HSBC Bank USA, Nat'l Ass'n v. Daniels
| Citation | 81 N.Y.S.3d 584,163 A.D.3d 639 |
| Decision Date | 11 July 2018 |
| Docket Number | Index No. 5889/09,2016–01679 |
| Parties | HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Oswald DANIELS, et al., appellants, et al., defendants. |
| Court | New York Supreme Court Appellate Division |
163 A.D.3d 639
81 N.Y.S.3d 584
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,
v.
Oswald DANIELS, et al., appellants, et al., defendants.
2016–01679
Index No. 5889/09
Supreme Court, Appellate Division, Second Department, New York.
Argued—February 23, 2018
Decided July 11, 2018
Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff and James Tierney of counsel), for appellants.
Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Oswald Daniels and Colleen Verwayne appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated October 29, 2015. The order, insofar as appealed from, denied, without a hearing, those branches of those defendants' motion which were pursuant to CPLR 5015(a)(1) and (4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court dated September 16, 2010, entered upon their failure to appear or answer the complaint, and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and for failure to comply with RPAPL 1304 or, in the alternative, for leave to serve a late answer.
ORDERED that the order dated October 29, 2015, is affirmed insofar as appealed from, with costs.
The plaintiff commenced this mortgage foreclosure action against Oswald Daniels
and Colleen Verwayne (hereinafter together the defendants), among others, in March 2009. Although allegedly served with the summons and complaint pursuant to CPLR 308, the defendants failed to appear or answer the complaint. In July 2009, the Supreme Court signed an order of reference without opposition. The plaintiff subsequently moved, inter alia, for a judgment of foreclosure and sale, and in an order dated August 16, 2010, the motion was granted, again without opposition. Thereafter, the court entered an order and judgment of foreclosure and sale dated September 16, 2010, which, among other things, directed the auction sale of the subject property.
On June 17, 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) and (4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and for failure to comply with RPAPL 1304 or, in the alternative, for leave to serve a late answer. Among other things, the defendants argued that the Supreme Court lacked personal jurisdiction over them because Daniels was not properly served with the summons and complaint. In an order dated October 29, 2015, the court denied the motion...
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