Opinion
16598 Index No. 850129/19 Case No. 2022-01979
11-03-2022
LYNX ASSET SERVICES, LLC, Plaintiff–Respondent, v. Peggy NESTOR, Defendant–Appellant, Marianne Nestor also known as Marianne Nestor Cassini et al., Defendants.
Peggy Nestor, appellant pro se. McGrail & Bensinger, LLP, New York (Ilana Volkov of counsel), for respondent.
Peggy Nestor, appellant pro se.
McGrail & Bensinger, LLP, New York (Ilana Volkov of counsel), for respondent.
Renwick, J.P., Kern, Moulton, Mendez, Pitt, JJ.
Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered on or about April 6, 2022, which denied defendant Peggy Nestor's motion to vacate her default and to dismiss the complaint, or alternatively for leave to file a late answer or a traverse hearing, and granted plaintiff's motion for summary judgment and an order of reference, unanimously affirmed, with costs.
The affidavit of the process server established, prima facie, that defendant Peggy Nestor was properly served, by three attempts at personal service at the mortgaged premises, followed by "nail and mail" service ( CPLR 308[4] ; see Grinshpun v. Borokhovich, 100 A.D.3d 551, 552, 954 N.Y.S.2d 520 [1st Dept. 2012], lv denied 21 N.Y.3d 857, 2013 WL 2436328 [2013] ). Moreover, defendant agreed in a stipulation to extend her time to answer that she had been served with the summons and complaint on July 29, 2019, and that she would not assert improper service of process or lack of personal jurisdiction as defenses. In light of the foregoing, there is no need for a traverse hearing (see American Sav. & Loan Assn. v. Twin Eagles Bruce, Inc., 208 A.D.2d 446, 447, 617 N.Y.S.2d 717 [1st Dept. 1994], lv dismissed 85 N.Y.2d 1032, 631 N.Y.S.2d 290, 655 N.E.2d 403 [1995] ).
Absent a reasonable excuse for her default, whether defendant demonstrated a potentially meritorious defense need not be considered (see Expo Dev. Corp. v. 824 S.E. Blvd. Realty Corp., 113 A.D.3d 549, 978 N.Y.S.2d 852 [1st Dept. 2014] ). In any event, she has not advanced any meritorious defenses. Plaintiff established a prima facie right to foreclose by producing the note, the mortgage securing the note, and evidence of nonpayment (see U.S. Bank N.A. v. Brjimohan, 153 A.D.3d 1164, 1165, 62 N.Y.S.3d 43 [1st Dept. 2017] ). Those documents were attached to an affidavit of plaintiff's vice president, who averred as to his personal knowledge of the facts and established defendant's default. Defendant's defenses that she did not receive notices required by RPAPL 1303 and 1304, that plaintiff failed to name a necessary party, and that plaintiff failed to elect its remedy, are unavailing.