LAW.coLAW.co

SRMOF II 2012-I Trust, Respondent-Appellant, v. Mercy I. Tella, Appellant-Respondent, et al., Defendants

New York Supreme Court, Appellate Division2016-05-26
139 A.D.3d 59933 N.Y.S.3d 25

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2014, which, inter alia, granted plaintiffs motion for a default judgment, and order, same court and Justice, entered September 22, 2015, which denied plaintiffs motion to remove defendant Mercy Telia as a necessary party to this action, and proceed without her, unanimously affirmed, without costs.

Plaintiffs excuse for its delay in moving for a default judgment indicates that there was activity well within the one-year period specified in CPLR 3215 (c) (see Pappoe v Custodio, 156 AD2d 211 [1st Dept 1989]). Defendant Telia offers no excuse for her default in answering the complaint, and her attempt to challenge the sufficiency of the documents underlying plaintiffs motion for a default judgment is unpreserved and in any event unavailing. Plaintiffs proof of service, the summons and complaint, and Tella’s default in answering when served with process, in conjunction with “[the] affidavit of merit by the current loan servicer/assignee of the note and mortgage, who averred facts which constitute cognizable claims for foreclosure and sale against the obligor/mortgagor defendant! ],” are sufficient to support plaintiff’s motion (BAC Home Loan Servicing, LP v Bertram, 51 Misc 3d 770, 783-784 [Sup Ct, Suffolk County 2016]; see also HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206 [2d Dept 2015]).

Plaintiff failed to demonstrate that it waived its right to assert a deficiency judgment against Telia, and, thus, failed to establish that Telia is not a necessary or indispensable party who can be severed from these proceedings (see Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805, 805 [2d Dept 1981]).

Concur — Mazzarelli, J.P., Andrias, Richter, Manzanet-Daniels and Kahn, JJ.