Private Capital Grp., LLC v. Hosseinipour

• Citation: 95 N.Y.S.3d 585,170 A.D.3d 909
• Decision Date: 13 March 2019
• Docket Number: 2017–01493,Index No. 22063/06
• Parties: PRIVATE CAPITAL GROUP, LLC, Respondent, v. Essy HOSSEINIPOUR, etc., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 909
95 N.Y.S.3d 585

PRIVATE CAPITAL GROUP, LLC, Respondent,
v.
Essy HOSSEINIPOUR, etc., Appellant, et al., Defendants.

2017–01493
Index No. 22063/06

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

Argued - November 5, 2018
March 13, 2019

Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for appellant.

Lamb & Barnosky, LLP, Melville, N.Y. (Michelle S. Feldman and Joel M. Markowitz of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

95 N.Y.S.3d 586

DECISION & ORDER

170 A.D.3d 909

ORDERED that the order is reversed, on the law and the facts, with costs, that branch of the motion of the defendant Essy Hosseinipour which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted, and that branch of his motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is denied as academic.

In October 2006, the plaintiff commenced this action against the defendant Essy Hosseinipour (hereinafter the defendant), among others, to foreclose a mortgage. The defendant failed to appear or answer the complaint. In November 2008, the plaintiff served and filed a note of issue, and in March 2009, the plaintiff served the defendant with a notice pursuant to CPLR 3215(g) and a motion, inter alia, for summary judgment on the complaint and an order of reference. In an order dated May 14, 2010, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint and for an order of reference. On appeal, this Court reversed the order dated May 14, 2010, insofar as appealed from and, inter alia, denied that branch of the plaintiff's motion which was for an order of reference (see Private Capital Group, LLC v. Hosseinipour , 86 A.D.3d 554, 927 N.Y.S.2d 665 ). By order to show cause dated June 20, 2016, the defendant

170 A.D.3d 910

moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned or, in the alternative, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an order entered September 29, 2016, the court denied those branches of the defendant's motion. The defendant appeals.

Contrary to the plaintiff's contention, the defendant did not waive the right to seek dismissal of the complaint insofar as asserted against him pursuant to CPLR 3215(c) when, in June 2009, his attorney contacted the plaintiff's attorney in an attempt to resolve the litigation. A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( Myers v. Slutsky , 139 A.D.2d 709, 711, 527 N.Y.S.2d 464 ; see De Lourdes Torres v. Jones , 26 N.Y.3d 742, 772, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; HSBC Bank USA, N.A. v. Grella , 145 A.D.3d 669, 670–671, 44 N.Y.S.3d 56 ; HSBC Bank USA v. Lugo , 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 ; Hodson v. Vinnie's Farm Mkt. , 103 A.D.3d 549, 959 N.Y.S.2d 440 ). Here, the defendant did not appear formally or informally, since he did not actively litigate the action before the Supreme Court (see

95 N.Y.S.3d 587

...