WILMINGTON SAVINGS FUND SOCIETY FSB v. MENDEZ (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Carmen Mendez appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated February 6, 2023.  The order denied that defendant's motion to cancel a scheduled foreclosure sale and to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

The plaintiff's predecessor in interest commenced this action against the defendant Carmen Mendez (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brooklyn.  The defendant interposed an answer, asserting several affirmative defenses but not the statute of limitations or fraud.  The Supreme Court awarded the plaintiff summary judgment on the complaint insofar as asserted against the defendant and entered a judgment of foreclosure and sale dated April 26, 2018.  After certain delays not relevant to this appeal, a foreclosure sale was scheduled for October 27, 2022.  The defendant moved to cancel the sale and to dismiss the complaint insofar as asserted against her on the grounds that the action was barred by the statute of limitations and fraud.  In the order appealed from, the court denied the motion.  The defendant appeals.

CPLR 3018(b) requires a party to plead certain affirmative defenses, including fraud and the statute of limitations.  The failure to plead such a defense or to raise it in a timely motion pursuant to CPLR 3211(a) generally “results in a waiver” (Munson v. New York Seed Improvement Coop., Inc., 64 N.Y.2d 985, 986, 489 N.Y.S.2d 39, 478 N.E.2d 180;  see GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37, 40, 136 N.Y.S.3d 439;  see also CPLR 3211[e]).  Here, the defendant did not raise the statute of limitations or fraud in a timely motion pursuant to CPLR 3211(a) or in her answer and, thus, waived those defenses (see Housing Trust Fund Corp. v. Nugent–Nobles, 235 A.D.3d 854, 228 N.Y.S.3d 612;  Globe Trade Capital, LLC v. Hoey, 199 A.D.3d 764, 768–769, 158 N.Y.S.3d 132).  Further, although a judgment may be vacated pursuant to CPLR 5015(a)(3) on the grounds of fraud, misrepresentation, or other misconduct of an adverse party, the defendant failed to establish any fraud on the part of the plaintiff or its predecessor in interest (see Globe Trade Capital, LLC v. Hoey, 199 A.D.3d 769, 771–772, 157 N.Y.S.3d 502;  Deutsche Bank Natl. Trust Co. v. Afram, 188 A.D.3d 593, 594, 132 N.Y.S.3d 752).

Accordingly, the Supreme Court properly denied the plaintiff's motion to cancel the scheduled foreclosure sale and to dismiss the complaint insofar as asserted against her.

DILLON, J.P., BRATHWAITE NELSON, WARHIT and LOVE, JJ., concur.