Opinion
2018–09034, 2019–02350 Index No. 130530/12
11-24-2021
CITIMORTGAGE, etc., respondent, v. Anna STUCKOVA, appellant, et al., defendants.
Law Office of Nicholas Moccia, P.C., Staten Island, NY (Nicholas M. Moccia of counsel), for appellant. Friedman Vartolo, LLP, New York, NY (Oran Schwager of counsel), for respondent.
Law Office of Nicholas Moccia, P.C., Staten Island, NY (Nicholas M. Moccia of counsel), for appellant.
Friedman Vartolo, LLP, New York, NY (Oran Schwager of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Anna Stuckova appeals from (1) an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated April 18, 2018, and (2) a judgment of foreclosure and sale of the same court dated December 3, 2018. The order, insofar as appealed from, granted the plaintiff's unopposed motion to confirm the report of a referee (Kenneth McGrail, Ct. Atty. Ref.) dated October 27, 2017, made after a hearing on the validity of service of process upon the defendant Anna Stuckova, and denied that branch of that defendant's cross motion which was pursuant to CPLR 317 to vacate her default in answering the complaint. The judgment of foreclosure and sale, inter alia, directed the sale of the subject property.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed as a portion of the order was entered upon default and the right of direct appeal from the remaining portions of the order terminated with the entry of the judgment of foreclosure and sale in the action (see CPLR 5511 ; Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
The plaintiff commenced this action against the defendant Anna Stuckova (hereinafter the defendant), among others, to foreclose a mortgage secured by certain real property located in Staten Island. After the Supreme Court granted the plaintiff's unopposed motion for an order of reference and the amount due under the mortgage was calculated, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. The defendant, who had failed to appear or answer the complaint, cross-moved, inter alia, pursuant to CPLR 317 to vacate her default in answering the complaint or, in the alternative, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, arguing, among other things, that she had not been properly served with the summons and complaint. After a hearing was held before a referee on the issue of the validity of service of process upon the defendant, the plaintiff moved to confirm the referee's report. The defendant did not object or cross-move to reject the referee's report. In an order dated April 18, 2018, the court, inter alia, granted the plaintiff's unopposed motion to confirm the referee's report, and denied the defendant's cross motion, inter alia, to vacate her default in answering the complaint. The court subsequently entered a judgment of foreclosure and sale dated December 3, 2018. The defendant appeals.
Pursuant to CPLR 4403, any party may move to confirm or reject a referee's report, in whole or in part, within 15 days after the filing of the report. "In enacting CPLR 4403, the Legislature intended that the parties point out in what respects, if any, the Referee's report or his [or her] conduct of the proceedings is erroneous" ( Passaro v. Henry, 251 A.D.2d 390, 390, 673 N.Y.S.2d 322 [internal quotation marks omitted]; see Matter of Breland [Motor Veh. Acc. Indem. Corp.], 24 A.D.2d 881, 881, 264 N.Y.S.2d 584 ). As the defendant did not oppose the plaintiff's motion to confirm the referee's report, or cross-move to reject it, she has waived her right to assert objections to the findings of the referee for the first time on appeal (see O'Donnell v. O'Donnell, 80 A.D.3d 586, 587, 914 N.Y.S.2d 300 ; see also Passaro v. Henry, 251 A.D.2d at 391, 673 N.Y.S.2d 322 ; Matter of Treider v. Lamora, 44 A.D.3d 1241, 1243, 846 N.Y.S.2d 389 ).
CPLR 317 permits a defendant who has been served with a summons and complaint other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons and complaint in time to defend and has a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Bethpage Fed. Credit Union v. Grant, 178 A.D.3d 997, 998, 115 N.Y.S.3d 410 ). "However, ‘to support a determination granting relief under CPLR 317, a party must still demonstrate, and the Court must find, that the party did not receive actual notice of the summons and complaint in time to defend the action’ " ( Bethpage Fed. Credit Union v. Grant, 178 A.D.3d at 998, 115 N.Y.S.3d 410, quoting Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 754, 941 N.Y.S.2d 679 ). Here, the defendant failed to demonstrate that she did not receive notice of the action in time to defend against it. "The mere denial of receipt of the summons and complaint is ... insufficient to establish lack of actual notice for the purpose of CPLR 317" ( Wassertheil v. Elburg, LLC, 94 A.D.3d at 754, 941 N.Y.S.2d 679 [internal quotation marks omitted]; see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 654, 968 N.Y.S.2d 93 ). In light of the foregoing, it was unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense (see Bedessee Imports, Inc. v. Najjar, 170 A.D.3d 640, 641–642, 95 N.Y.S.3d 577 ; see also Stevens v. Stepanski, 164 A.D.3d 935, 938, 84 N.Y.S.3d 1 ).
Accordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was pursuant to CPLR 317 to vacate her default in answering the complaint.
DILLON, J.P., BARROS, CHRISTOPHER and ZAYAS, JJ., concur.