LASALLE BANK NATIONAL ASSOCIATION v. BLAKE (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kemi Blake appeals from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 31, 2022, (2) an order of the same court dated March 20, 2023, (3) an order of the same court dated July 21, 2023, and (4) an order of the same court dated June 10, 2024.  The order dated May 31, 2022, insofar as appealed from, granted those branches of the plaintiff's motion which were to vacate an order of the same court (Noach Dear, J.) dated November 8, 2017, sua sponte, directing dismissal of the complaint as abandoned pursuant to CPLR 3215(c) and to restore the action to the active calendar.  The order dated March 20, 2023, insofar as appealed from, denied the motion of the defendant Kemi Blake for leave to reargue her opposition to those branches of the plaintiff's motion which were to vacate the order dated November 8, 2017, and to restore the action to the active calendar.  The order dated July 21, 2023, denied the motion of the defendant Kemi Blake for leave to renew her opposition to those branches of the plaintiff's motion which were to vacate the order dated November 8, 2017, and to restore the action to the active calendar.  The order dated June 10, 2024, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Kemi Blake and for an order of reference, and denied that defendant's cross-motion, inter alia, to vacate her default in answering the complaint and to dismiss the complaint insofar as asserted against her.

ORDERED that the order dated May 31, 2022, is affirmed insofar as appealed from;  and it is further,

ORDERED that the appeal from the order dated March 20, 2023, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED the order dated July 21, 2023, is affirmed;  and it is further,

ORDERED the order dated June 10, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In January 2007, the defendant Kemi Blake (hereinafter the defendant) executed a note in the sum of $750,000, which was secured by a mortgage on certain real property located in Brooklyn.  In December 2008, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage.  The defendant failed to interpose an answer.

In an order dated July 19, 2017, the Supreme Court directed the plaintiff to move for an order of reference within 90 days, setting forth the reason for the plaintiff's delay in prosecuting the action, or face dismissal of the complaint as abandoned.  In an order dated November 8, 2017, the court, sua sponte, directed dismissal of the complaint as abandoned pursuant to CPLR 3215(c) (hereinafter the dismissal order).  The dismissal order with notice of entry was not served on the plaintiff until July 2021.

In August 2021, the plaintiff moved, inter alia, to vacate the dismissal order and to restore the action to the active calendar.  The defendant opposed the motion and cross-moved, among other things, pursuant to 22 NYCRR 130–1.1 to impose sanctions against the plaintiff's counsel.  Notably, the defendant did not raise lack of personal jurisdiction as a defense.  In an order dated May 31, 2022, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were to vacate the dismissal order and to restore the action to the active calender.  The defendant appeals from this order.

Thereafter, the defendant moved for leave to renew her opposition to those branches of the plaintiff's motion which were to vacate the dismissal order and to restore the action to the active calendar based on a change in the law, namely, the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ).  In an order dated July 21, 2023, the Supreme Court denied the defendant's motion.  The defendant appeals from this order.

Subsequently, the plaintiff moved, among other things, for leave to enter a default judgment against the defendant and for an order of reference.  The defendant cross-moved, inter alia, to vacate her default in answering the complaint and to dismiss the complaint insofar as asserted against her.  In an order dated June 10, 2024, the Supreme Court, among other things, granted those branches of the plaintiff's motion and denied the defendant's cross-motion.  The defendant appeals from this order.

The defendant's contention that the Supreme Court lacked personal jurisdiction over her when it issued the order dated May 31, 2022, is improperly raised for the first time on appeal.  In any event, the defendant's contention is without merit.

A defendant may waive the issue of personal jurisdiction by appearing in an action without raising the defense of lack of personal jurisdiction in an answer or a pre-answer motion to dismiss (see BAC Home Loans Servicing, L.P. v Davis, 241 AD3d 1231, 1231–1232;  U.S. Bank N.A. v Smith, 210 AD3d 725, 726).  Likewise, where a defendant participates in a lawsuit on the merits, that defendant indicates an intention to submit to the court's jurisdiction, and in turn, the defendant confers in personam jurisdiction on the court (see BAC Home Loans Servicing, L.P. v Davis, 241 AD3d at 1232;  Travelon, Inc. v Maekitan, 215 AD3d 710, 712).

While service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306–b), a claim that the complaint should be dismissed under CPLR 306–b is waived where a defendant does not properly raise such an objection (see Vanyo v Buffalo Police Benevolent Assn., Inc., 34 NY3d 1104, 1105).

Here, in opposition to the plaintiff's motion, inter alia, to vacate the dismissal order and to restore the action to the active calendar, the defendant failed to raise a defense based on personal jurisdiction or the plaintiff's failure to comply with CPLR 306–b.  As the defendant opposed the plaintiff's motion and affirmatively sought relief from the Supreme Court without seeking a determination on the propriety of service upon her, the court's exercise of personal jurisdiction, or the plaintiff's failure to comply with CPLR 306–b, the defendant waived those defenses (see Vanyo v Buffalo Police Benevolent Assn., Inc., 34 NY3d at 1105;  BAC Home Loans Servicing, L.P. v Davis, 241 AD3d at 1231–1232).  Accordingly, the defendant's challenges to the order dated May 31, 2022, are without merit.

The Supreme Court properly denied the defendant's motion for leave to renew, based on a change in the law, her opposition to those branches of the plaintiff's motion which were to vacate the dismissal order and to restore the action to the active calendar.  Contrary to the defendant's contention, under the circumstances, the enactment of FAPA had no effect on the court's determination to vacate the dismissal order and to restore the action to the active calendar (see Wilmington Trust, N.A. v Pacific St. Servs., Inc., 246 AD3d 777, 779;  see also RPAPL 1301[3];  Citimortgage, Inc. v Hassanin, 242 AD3d 1169, 1170–1171).

Pursuant to CPLR 5015(a)(3), the court that rendered an order may relieve a party from it upon such terms as may be just, upon the ground of “fraud, misrepresentation, or other misconduct of an adverse party.”  “Where, as here, a defendant alleges extrinsic fraud, the defendant must ‘demonstrate some device, trick, or deceit that led it to believe that it need not defend the suit’ ” (HSBC Bank USA, N.A. v Bolkas, 243 AD3d 766, 768, quoting LaSalle Bank N.A. v Oberstein, 146 AD3d 945, 945;  see Empire State Conglomerates v Mahbur, 105 AD3d 898, 899).

Here, the defendant's contention that the plaintiff's service of process upon her in 2020, after the complaint had been dismissed as abandoned, amounted to extrinsic fraud is without merit.  The defendant did not demonstrate that the 2020 service led her to believe that she did not need to defend the action.  Thus, the defendant's fraud contention was without merit and insufficient to warrant vacatur of her default in answering the complaint pursuant to CPLR 5015(a)(3) (see LaSalle Bank N.A. v Oberstein, 146 AD3d at 946).

Pursuant to CPLR 5015(a)(4), the court that rendered an order may relieve a party from it upon such terms as may be just, upon the ground of “lack of jurisdiction to render the judgment or order” (see Bharath v Sitaram, 246 AD3d 859, 860;  Sams Distribs., LLC v Friedman, 235 AD3d 1021, 1022).  However, where, as here, 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 confers in personam jurisdiction on the court (see Bharath v Sitaram, 246 AD3d at 861;  Deutsche Bank Natl. Trust Co. v Medford, 234 AD3d 669, 671).

As the defendant conferred jurisdiction on the Supreme Court in opposing the plaintiff's motion, among other things, to vacate the dismissal order and to restore the action to the active calendar and cross-moving, inter alia, to impose sanctions, without challenging the court's exercise of personal jurisdiction over her, the defendant waived her jurisdictional objection, and as such, it could not form the basis for vacatur of her default in answering the complaint pursuant to CPLR 5015(a)(4) (see Bharath v Sitaram, 246 AD3d at 861).

The parties' remaining contentions either are without merit or need not be reached in light of our determination (see Newlands Asset Holding Trust v Vasquez, 218 AD3d 786, 786).

LASALLE, P.J., CHAMBERS, TAYLOR and HOM, JJ., concur.