U.S. Bank v. Rodriguez

• Decision Date: 11 January 2022
• Docket Number: Case No. 2021-03002,Index No. 381105/07,Appeal No. 15045
• Citation: 2022 NY Slip Op 00151
• Parties: U.S. Bank National Association, as Trustee for the Holders of the Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-BC4, Plaintiff-Respondent, v. Teodora Margarita Rodriguez, Defendant-Appellant, New York City Transit Adjudication Bureau, et al., Defendants. Appeal No. 15045 Case No. 2021-03002
• Court: New York Supreme Court

2022 NY Slip Op 00151

U.S. Bank National Association, as Trustee for the Holders of the Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-BC4, Plaintiff-Respondent, v. Teodora Margarita Rodriguez, Defendant-Appellant, New York City Transit Adjudication Bureau, et al., Defendants.

Appeal No. 15045 Case No. 2021-03002

Index No. 381105/07

Supreme Court of New York, First Department

January 11, 2022

Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant.

McCalla, Raymer, Leibert & Pierce LLC, New York (Harold L. Kofman of counsel), for respondent.

Before: Gische, J.P., Kern, Friedman, Oing, Singh, JJ.

Order Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about August 12, 2019, which denied defendant Teodora Margarita Rodriguez's motion to vacate her default and dismiss the foreclosure action for lack of personal jurisdiction pursuant to CPLR 5015(a)(4) and CPLR 3211(a)(8) unanimously affirmed, without costs.

"Subject to the provisions of subdivision (c), an appearance of the defendant is equivalent to personal service of the summons upon [her], unless an objection to jurisdiction under paragraph eight of subdivision (a) of rule 3211 is asserted by motion or in the answer as provided in rule 3211" (CPLR 320[b]; see Urena v NYNEX, Inc., 223 A.D.2d 442, 443 [1st Dept 1996]; Rubino v City of New York, 145 A.D.2d 285, 288 [1st Dept 1989]). Defendant's assertion that U.S. Bank lacked standing in the March 12, 2018 order to show cause combined with her attempt to seek affirmative relief, such as enforcement of a short sale or a return to the settlement conference part, demonstrated a challenge to the merits of this action. Although both defendant and her counsel stated that defendant did not receive the summons and complaint or any "court papers," their failure to move at that time to dismiss the complaint for lack of personal jurisdiction failed to preserve such objection (CPLR 320[b]).

Even if considered, the affidavit of service was prima facie evidence of proper service (see Bank of Am., N.A. v Budhan 171 A.D.3d 622, 622 [1st Dept 2019]). Defendant's conclusory assertion that she resided at the mortgaged property, without providing any evidence or specifying a time frame, was conclusory, and could not establish that service was deficient (see HSBC Bank USA, N.A. v Hanchard, 170 A.D.3d 599, 599-600 [1st Dept 2019]). ...