DEUSTCHE BANK NATIONAL TRUST COMPANY v. Continente Corporation et al., Defendants. (2023)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 6, 2016, which denied plaintiff's motion for a judgment of foreclosure and sale, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The court erred in finding that triable issues of fact precluded granting plaintiff a judgment of foreclosure and sale.  Having failed to timely answer the complaint or make a pre-answer motion to dismiss, and having made no attempt to vacate their default or provide a reasonable excuse for the default, defendants waived their defense that plaintiff lacked standing to bring this action (see U.S. Bank N.A. v. Goldberger, 211 A.D.3d 1077, 1078, 179 N.Y.S.3d 595 [2d Dept. 2022];  Aurora Loan Services, LLC v. Jemal, 205 A.D.3d 661, 663, 169 N.Y.S.3d 79 [2d Dept. 2022]).  Moreover, defendants’ default precluded them from asserting that plaintiff's assignor violated Banking Law § 6–l (see U.S. Bank N.A. v. Sherwood, 181 A.D.3d 469, 117 N.Y.S.3d 572 [1st Dept. 2020];  Whittemore v. Yeo, 112 A.D.3d 475, 476, 977 N.Y.S.2d 15 [1st Dept. 2013]), which, in any event, was not in effect in that form at the time the loan was made in 2006 (Endeavor Funding Corp. v. Allen, 102 A.D.3d 593, 594, 958 N.Y.S.2d 300 [1st Dept. 2013]).