WELLS FARGO BANK NA v. New York City Environmental Control Board, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

WELLS FARGO BANK, NA, etc., Plaintiff–Respondent, v. Sheila EDWARDS, Defendant–Appellant, New York City Environmental Control Board, et al., Defendants.

Decided: May 22, 2012

TOM, J.P., SWEENY, RENWICK, FREEDMAN, ABDUS–SALAAM, JJ. Clair & Gjertsen, Scarsdale (Patricia M. Lattanzio of counsel), for appellant. Rosicki, Rosicki & Associates, P.C., Plainview (Edward Rugino of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 26, 2010, which denied defendant Sheila Edwards's cross motion to dismiss the summons and complaint on the ground of lack of personal jurisdiction based upon improper service, and granted plaintiff's motion for a judgment of foreclosure and sale, to confirm the referee's report and for attorneys' fees, unanimously affirmed, without costs.

 The court properly found that defendant's allegations were insufficient to rebut plaintiff's prima facie showing of proper service.   Defendant's denial of service did not controvert the veracity or content of the affidavit of service so as to require a traverse hearing (see generally NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [2004] ).   In addition, her correspondence to her mortgage loan servicer made shortly after the date of service, indicating that she sought to recommence payment of her mortgage in order to suspend the pending foreclosure action under the instant index number, contradicted her claim that she was not served with the summons and complaint.

 Contrary to defendant's contention, the court did not err in determining that she waived the issue of standing by failing to timely appear or answer (see CPLR 3211[a][3], [e] ).   In any event, the action was expressly maintained in plaintiff's capacity as trustee under a pooling and servicing agreement dated October 1, 2006, before the date of the commencement of the action (see CWCapital Asset Mgt. LLC v. Charney–FPG 114 41st St., LLC, 84 A.D.3d 506, 923 N.Y.S.2d 453 [2011] ).

We have considered defendant's remaining contentions and find them unavailing.