Opinion
06-13-2024
US BANK NATIONAL ASSOCIATION, etc., Plaintiff-Respondent, v. Mansour TABIBNIA et al., Defendants. The Domaine LLC, etc., Nonparty-Appellant.
Rosenberg Fortuna & Laitman, LLP, Garden City (Anthony R. Filosa of counsel), for appellant. Reed Smith LLP, New York (James Faller of counsel), for respondent.
Rosenberg Fortuna & Laitman, LLP, Garden City (Anthony R. Filosa of counsel), for appellant.
Reed Smith LLP, New York (James Faller of counsel), for respondent.
Oing, J.P., Friedman, Scarpulla, Shulman, Higgitt, JJ.
Order and judgment (one paper), Supreme Court, New York County (Francis A. Kahn III, J.), entered May 4, 2023, which granted the motion of plaintiff U.S. Rank National Association, As Trustee for Structured Asset Investment Loan Trust Series 2005-7, to confirm the Referee's report and for a judgment of foreclosure and sale, and denied nonparty The Domaine LLC’s cross-motion to vacate defendant Mansour Tabibnia’s default and to dismiss the action, unanimously affirmed, with costs.
Domaine was the assignee of the successful bidder at the foreclosure sale of the condominium’s action to foreclose on a common charge lien. Domaine purchased the subject property when U.S. Bank had an active notice of pendency; thus, Domaine’s status as the owner of the equity of redemption made it an interested party under CPLR 5015(a) (see JP Morgan Chase Bank, N.A. v. White, 182 A.D.3d 469, 470, 122 N.Y.S.3d 296 [1st Dept. 2020]). Nevertheless, Domaine’s motion to vacate and dismiss this action was properly denied as meritless.
CPLR 6501 provides that a person whose conveyance is recorded after the filing of a notice of pendency will be bound by all proceedings taken in the action subsequent to the filing to the same extent as if they were a named party to the action (see Majada Inc. v. E & A RE Capital Corp., 205 A.D.3d 648, 170 N.Y.S.3d 18 [1st Dept. 2022]; JP Morgan Chase Bank v. White, 182 A.D.3d at 470, 122 N.Y.S.3d 296). Thus, the property interest of a purchaser who took title to the property where a notice of pendency was recorded prior to entry of judgment, like Domaine, is effectively foreclosed upon entry of the judgment of foreclosure (see Citimortgage, Inc. v. Dulgeroff, 138 A.D.3d 419, 419-420, 29 N.Y.S.3d 291 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1081, 44 N.Y.S.3d 375, 66 N.E.3d 1093 [2016]; HSBC Bank USA v. Minogue, 202 A.D.3d 662, 158 N.Y.S.3d 607 [2d Dept. 2022]).
Further, Domaine lacks standing to challenge the service made upon defendant Tabibnia "since such a claim is personal in nature and may only be raised by the party allegedly improperly served" (U.S. Bank N.A. v. Gotterup, 203 A.D.3d 982, 983, 161 N.Y.S.3d 837 [2d Dept. 2022]; see also JPMC Specialty Mtge. LLC v. Espada, 143 A.D.3d 611, 611, 40 N.Y.S.3d 70 [1st Dept. 2016]). In any event, the de- fense is unavailing considering the proper affidavits of service.