SRMOF II 2012-I Trust v. Tella

• Decision Date: 26 May 2016
• Docket Number: 381099/12, 1265N, 1264N.
• Parties: SRMOF II 2012–I TRUST, etc., Plaintiff–Respondent–Appellant, v. Mercy I. TELLA, etc., Defendant–Appellant–Respondent, City of New York Environmental Control Board, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 599

33 N.Y.S.3d 25

2016 N.Y. Slip Op. 04100

SRMOF II 2012–I TRUST, etc., Plaintiff–Respondent–Appellant,

v. Mercy I. TELLA, etc., Defendant–Appellant–Respondent,City of New York Environmental Control Board, et al., Defendants.

381099/12, 1265N, 1264N.

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

May 26, 2016.

Biolsi Law Group P.C., New York (Steven A. Biolsi of counsel), for appellant-respondent.

The Law Offices of Charles Wallshein, Melville (Charles W. Marino of counsel), and Stiene & Associates, P.C., Huntington (Charles W. Marino of counsel), for respondent-appellant.

MAZZARELLI, J.P., ANDRIAS, RICHTER, MANZANET–DANIELS, KAHN, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2014, which, inter alia, granted plaintiff's motion for a default judgment, and order, same court and Justice, entered September 22, 2015, which denied plaintiff's motion to remove defendant Mercy Tella as a necessary party to this action, and proceed without her, unanimously affirmed, without costs.

Plaintiff's excuse for its delay in moving for a default judgment indicates that there was activity well within the one-year period specified in CPLR 3215(c)

(see

Pappoe v. Custodio, 156 A.D.2d 211, 548 N.Y.S.2d 472 [1st Dept.1989] ). Defendant Tella offers no excuse for her default in answering the complaint, and her attempt to challenge the sufficiency of the documents underlying plaintiff's motion for a default judgment is unpreserved and in any event unavailing. Plaintiff's proof of service, the summons and complaint, and Tella's default in answering when served with process, in conjunction with “[the] affidavit of merit by the current loan servicer/assignee of the note and mortgage, who averred facts which constitute cognizable claims for foreclosure and sale against the obligor/mortgagor defendant[ ],” are sufficient to support plaintiff's motion (BAC Home Loan Servicing, LP v. Betram, 51 Misc.3d 770, 783–784, 30 N.Y.S.3d 483 [Sup.Ct., Suffolk County 2016]

; see also

HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 18 N.Y.S.3d 67 [2d Dept.2015] ).

Plaintiff failed to demonstrate that it waived its right to assert a deficiency judgment against Tella, and, thus, failed to establish that Tella is not a necessary or indispensable party who can be severed from these proceedings (see Federal Natl. Mtge. Assn. v. Connelly, 84 A.D.2d 805, 805, 444 N.Y.S.2d 147 [2d Dept.1981]

).