Opinion
12-28-2016
CITIMORTGAGE, INC., appellant, v. Dwight NOEL, et al., defendants.
Knuckles, Komosinski & Elliott LLP, Elmsford, NY (Louis A. Levithan of counsel), for appellant.
Knuckles, Komosinski & Elliott LLP, Elmsford, NY (Louis A. Levithan of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated June 11, 2015, which denied its unopposed motion, inter alia, for leave to enter a default judgment against the defendants Dwight Noel and Stephanie Denis Noel, upon their failure to appear or answer the complaint, and for an order of reference.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's motion, inter alia, for leave to enter a default judgment against the defendants Dwight Noel and Stephanie Denis Noel, upon their failure to appear or answer the complaint, and for an order of reference, is granted.
The Supreme Court erred in denying the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment against the defendants Dwight Noel and Stephanie Denis Noel (hereinafter together the defendants), upon their failure to appear or answer the complaint, and for an order of reference. “An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear” (U.S. Bank, N.A. v. Razon, 115 A.D.3d 739, 740, 981 N.Y.S.2d 571 ; see CPLR 3215[f] ; U.S. Bank N.A. v. Wolnerman, 135 A.D.3d 850, 851, 24 N.Y.S.3d 343 ; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 843, 7 N.Y.S.3d 147 ). Here, in support of its motion, the plaintiff satisfied these requirements (see U.S. Bank, N.A. v. Razon, 115 A.D.3d at 740, 981 N.Y.S.2d 571 ).
It was improper for the Supreme Court to deny the plaintiff's motion on the basis of lack of standing, since the defendants waived that defense by failing to answer the complaint or move pre-answer to dismiss the complaint on that ground (see Onewest Bank, FSB v. Fernandez, 112 A.D.3d 681, 682, 976 N.Y.S.2d 405 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301 ; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 838, 951 N.Y.S.2d 900 ).
In addition, the Supreme Court should have granted that branch of the plaintiff's motion which was for an order of reference (see RPAPL 1321 ; U.S. Bank N.A. v. Wolnerman, 135 A.D.3d at 851, 24 N.Y.S.3d 343 ; Wells Fargo Bank, NA v. Ambrosov, 120 A.D.3d 1225, 1226, 993 N.Y.S.2d 322 ; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 816, 962 N.Y.S.2d 301 ; Bank of N.Y. v. Alderazi, 99 A.D.3d 837, 838, 951 N.Y.S.2d 900 ).
Accordingly, the Supreme Court should have granted the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint, and for an order of reference.
BALKIN, J.P., DICKERSON, LaSALLE and CONNOLLY, JJ., concur.