BAC HOME LOANS SERVICING v. DAVIS (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Betty Davis and Vameershala Davis appeal from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered July 11, 2023.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were pursuant to CPLR 3215 for leave to enter a default judgment against those defendants and for an order of reference, and denied the cross-motion of those defendants pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction or, in the alternative, for leave to file a late answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2009, the plaintiff commenced this action against, among others, the defendants Betty Davis and Vameershala Davis (hereinafter together the defendants) to foreclose a mortgage encumbering certain real property located in Jamaica.  The defendants did not answer the complaint.  In February 2023, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants and for an order of reference.  The defendants opposed the motion and cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction or, in the alternative, for leave to file a late answer.  In an order entered July 11, 2023, the Supreme Court granted those branches of the plaintiff's motion and denied the defendants’ cross-motion.  The defendants appeal.

The Supreme Court properly denied that branch of the defendants’ cross-motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.  “ ‘A defendant may waive the issue of ․ personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss’ ” (U.S. Bank N.A. v. Smith, 210 A.D.3d 725, 726, 177 N.Y.S.3d 659 [internal quotation marks omitted], quoting Bayview Loan Servicing, LLC v. Zelyakovsky, 202 A.D.3d 738, 741, 163 N.Y.S.3d 166;  see HSBC Bank USA, N.A. v. Taub, 170 A.D.3d 1128, 1129, 97 N.Y.S.3d 60).  “ ‘A defendant may appear informally by actively litigating the action before the court’ ” (Bayview Loan Servicing, LLC v. Zelyakovsky, 202 A.D.3d at 741, 163 N.Y.S.3d 166, quoting Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481).  “ ‘When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court’ ” (Travelon, Inc. v. Maekitan, 215 A.D.3d 710, 712, 187 N.Y.S.3d 674, quoting Taveras v. City of New York, 108 A.D.3d at 617, 969 N.Y.S.2d 481;  see HSBC Bank USA, N.A. v. Whitelock, 214 A.D.3d 855, 856, 187 N.Y.S.3d 48).  Here, the defendants waived the defense of lack of personal jurisdiction by opposing a prior motion by the plaintiff for leave to enter a default judgment against them on the ground, among others, that the plaintiff failed to establish the merits of its cause of action against them and by thereafter opposing another prior motion by the plaintiff and filing a cross-motion for affirmative relief, all without asserting an objection to jurisdiction (see Bank of N.Y. Mellon v. Taylor, 230 A.D.3d 457, 458–459, 216 N.Y.S.3d 655;  U.S. Bank N.A. v. Jong Shin, 224 A.D.3d 933, 935, 207 N.Y.S.3d 88;  HSBC Bank USA, N.A. v. Whitelock, 214 A.D.3d at 856, 187 N.Y.S.3d 48;  HSBC Bank USA, N.A. v. Taub, 170 A.D.3d at 1129, 97 N.Y.S.3d 60).

The Supreme Court also properly denied that branch of the defendants’ cross-motion which was for leave to file a late answer.  “ ‘A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must be provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action’ ” (Citimortgage, Inc. v. Sparozic, 223 A.D.3d 867, 869, 206 N.Y.S.3d 82, quoting Bank of Am., N.A. v. Viener, 172 A.D.3d 795, 796, 100 N.Y.S.3d 293;  see Bank of N.Y. Mellon Trust Co., N.A. v. Barone, 209 A.D.3d 939, 941, 177 N.Y.S.3d 294).  Here, the defendants failed to demonstrate a reasonable excuse for their default in timely answering the complaint, as the only excuse proffered was lack of personal jurisdiction (see Deutsche Bank Natl. Trust Co. v. Geslani, 222 A.D.3d 835, 837, 202 N.Y.S.3d 243;  Bank of N.Y. Mellon Trust Co., N.A. v. Barone, 209 A.D.3d at 941, 177 N.Y.S.3d 294;  OneWest Bank, FSB v. Villafana, 187 A.D.3d 1201, 134 N.Y.S.3d 443).  Since the defendants failed to provide a reasonable excuse for their delay in answering the complaint, it is not necessary to determine whether they demonstrated a potentially meritorious defense to the action (see Bank of N.Y. Mellon Trust Co., N.A. v. Barone, 209 A.D.3d at 941, 177 N.Y.S.3d 294;  Bank of Am., N.A. v. Viener, 172 A.D.3d at 796, 100 N.Y.S.3d 293).

The defendants’ remaining contentions either need not be reached in light of our determination or are without merit.

IANNACCI, J.P., CHRISTOPHER, DOWLING and HOM, JJ., concur.