Opinion
5282 Index 381770/09
12-28-2017
U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Respondent, v. Lennon A. THOMAS, Defendant–Appellant, JP Morgan Chase Bank, NA, etc., et al., Defendants.
Lennon A. Thomas, appellant pro se. Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Lennon A. Thomas, appellant pro se. Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
Appeal from unsigned and unentered judgment, Supreme Court, Bronx County (John A. Barone, J.), deemed appeal from order, same court and Justice, entered March 17, 2014, which granted plaintiff's motion for a final judgment of foreclosure and sale, and denied defendant-appellant's motion to dismiss this action on the basis that plaintiff lacks standing, and, so considered, said order unanimously affirmed, without costs. Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived ( CPLR 3211[e] ; International Bus. Machs. Corp. v. Murphy & O'Connell, 172 A.D.2d 157, 158, 567 N.Y.S.2d 706 [1st Dept. 1991], appeal dismissed 78 N.Y.2d 908, 573 N.Y.S.2d 468, 577 N.E.2d 1060 [1991] [service of process]; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 280–281, 820 N.Y.S.2d 2 [1st Dept. 2006], appeal
dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] [standing] ).
In any event, the affidavit of service of the summons and complaint on defendant constitutes prima facie evidence of proper service, which defendant failed to rebut with anything more than conclusory denials of receipt ( Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ; 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, 969 N.Y.S.2d 443, 991 N.E.2d 217 [2013] ).
Plaintiff has demonstrated that it has standing by providing the affidavit of Marc Hinkle, a vice president of the mortgage loan servicer, affirming that plaintiff was the owner and holder of the note and mortgage at the commencement of this action ( Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ).
Defendant's failure to move to vacate the default judgment against him also precludes his success on this appeal. Any such motion would be time-barred ( CPLR 5015[a][1] ), and defendant has not attempted to show that he has a justifiable excuse for his default and a meritorious defense to this foreclosure action ( 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 [1986] ).
We have considered defendant's remaining arguments and find them unavailing.