Wells Fargo Bank, N.A., respondent, v. Lorna Boyd, appellant, et al., defendants. (2026)

Submitted—March 24, 2026

DECISION & ORDER

Q/

In an action to foreclose a mortgage, the defendant Lorna Boyd appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered June 21, 2023.  The order denied the motion of the defendant Lorna Boyd, and the separate motion of the defendant Lorna Boyd and nonparty Dario Charles, in effect, to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered October 17, 2017, upon the failure of the defendant Lorna Boyd to answer the complaint and to set aside the foreclosure sale of the subject property, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Lorna Boyd for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

In March 2013, the plaintiff commenced this mortgage foreclosure action against the defendant Lorna Boyd (hereinafter the defendant), among others.  The defendant failed to timely answer the complaint.  In October 2014, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference.  The defendant requested an adjournment of the return date of the motion, and the defendant and the plaintiff entered into a stipulation adjourning the motion.  In an order dated September 28, 2016, the Supreme Court, among other things, granted the plaintiff's unopposed motion and appointed a referee to compute the amount due to the plaintiff.

In December 2016, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale.  The defendant opposed the motion.  In December 2016, the defendant attempted to serve an answer, which the plaintiff rejected as untimely.  In January 2017, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.  In an order dated April 17, 2017, the Supreme Court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and in an order dated May 16, 2017, the court denied the defendant's motion to dismiss the complaint insofar as asserted against her.

An order and judgment of foreclosure and sale was entered on October 17, 2017, and the property was sold to a third party at a foreclosure sale held on April 9, 2019.

Thereafter, in 2022, the defendant moved, and the defendant and nonparty Dario Charles separately moved, in effect, to vacate the order and judgment of foreclosure and sale and to set aside the foreclosure sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant for lack of personal jurisdiction.  In an order entered June 21, 2023, the Supreme Court denied the motions.  The defendant appeals.

The order dated May 16, 2017, from which the defendant did not appeal, was the law of the case with respect to the arguments raised by the defendant regarding lack of personal jurisdiction (see Citimortgage, Inc. v. Pierce, 203 AD3d 878, 880).  Although this Court is not bound by the Supreme Court's prior determination pursuant to the doctrine of law of the case and we may consider the defendant's contentions, the defendant's contentions regarding lack of personal jurisdiction are without merit (see 23–35 Bridge St., LLC v Excel Auto. Tech Ctr., Inc., 245 AD3d 870, 871;  Citimortgage, Inc. v. Pierce, 203 AD3d at 880).  The defendant waived the defense of lack of personal jurisdiction by actively litigating the action before the Supreme Court without first asserting an objection to jurisdiction (see Bank of N.Y. Mellon v. Gaston, 241 AD3d 1242, 1245;  BAC Home Loans Servicing, L.P. v Davis, 241 AD3d 1231, 1232;  U.S. Bank Trust N.A. v. Gordon, 236 AD3d 705, 706–707).

The defendant's remaining contentions are not properly before this Court.

Accordingly, the Supreme Court properly denied the defendant's motion, and the separate motion of the defendant and Charles, in effect, to vacate the order and judgment of foreclosure and sale and to set aside the foreclosure sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant for lack of personal jurisdiction.

CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court