U.S. Bank, National Association, etc., respondent, v. Abdallah Ittayem, et al., appellants, et al., defendants. (2026)

Argued—January 13, 2026

DECISION & ORDER

A/

In an action to foreclose a mortgage, the defendants Abdallah Ittayem and Ibrahim Ittayem appeal from a judgment of foreclosure and sale of the Supreme Court, Kings County (Lawrence Knipel, J.), dated July 3, 2023.  The judgment of foreclosure and sale, upon an order of the same court dated March 10, 2023, denying the motion of those defendants to dismiss the complaint insofar as asserted against them and to discharge of record the subject mortgage, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the judgment of foreclosure and sale is affirmed, with costs.

In March 2009, the plaintiff's predecessor in interest, Downey Savings and Loan Association, F.A. (hereinafter Downey), commenced this action to foreclose a mortgage against the defendant Abdallah Ittayem (hereinafter the borrower), among others.  The borrower failed to answer the complaint.  In an order dated September 14, 2011, the Supreme Court granted Downey's motion to withdraw its ex parte motion for an order of reference and directed dismissal of the complaint without prejudice.

In an order dated January 17, 2020, the Supreme Court granted Downey's motion to vacate the September 14, 2011 order and to restore the action to the active calendar.  In an order dated September 29, 2022, the court granted Downey's motion for leave to enter a default judgment against the borrower and for an order of reference, and denied the borrower's cross-motion to dismiss the complaint insofar as asserted against him.  In an order also dated September 29, 2022, the court appointed a referee to compute the amount due on the note and amended the caption to substitute the plaintiff for Downey and Ibrahim Ittayem for a “John Doe” defendant.  The order noted that both the borrower and the defendant Ibrahim Ittayem were in default.

In January 2023, the borrower and Ibrahim Ittayem (hereinafter together the defendants) moved to dismiss the complaint insofar as asserted against them and to discharge of record the subject mortgage on the ground that the statute of limitations had expired.  In an order dated March 10, 2023, the Supreme Court denied the motion.  Thereafter, in a judgment of foreclosure and sale dated July 3, 2023, the court confirmed the referee's report and directed the sale of the property.  The defendants appeal.

The Supreme Court properly denied the defendants' motion to dismiss the complaint insofar as asserted against them and to discharge of record the mortgage on the ground that the statute of limitations had expired.  “[W]here the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she ‘failed to appear’ within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any nonjurisdictional defense without first rebutting the prima facie showing of default and obtaining leave to serve a late answer” (Aurora Loan Servs., LLC v. Jemal, 205 AD3d 661, 663 [internal citations omitted] ).  Here, the defendants' contention that the instant action is time-barred is a nonjurisdictional defense and is thus precluded by the defendants' failure to vacate their default (see Ditech Fin., LLC v. Howell, 201 AD3d 786, 788;  Aurora Loan Servs., LLC, v. Movtady, 165 AD3d 1025, 1026).

The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court