SRMOF II v. Mercy I. Tella, etc., Defendant–Appellant–Respondent, City of New York Environmental Control Board, et al., Defendants.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department.

— SRMOF II I Trust, etc., Plaintiff–Respondent–Appellant, v. Mercy I. Tella, etc., Defendant–Appellant–Respondent, City of New York Environmental Control Board, et al., Defendants.

1264N 1265N 2012–

Decided: May 26, 2016

Mazzarelli, J.P., Andrias, Richter, Manzanet–Daniels, Kahn, JJ. Biolsi Law Group P.C., New York (Steven A. Biolsi of counsel), for appellant-respondent. The Law Offices of Charles Wallshein, Melville (Charles W. Marino of counsel), and Stiene & Associates, P.C., Huntington (Charles W. Marino of counsel), for respondent-appellant.

_

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered September 9, 2014, which, inter alia, granted plaintiff's motion for a default judgment, and order, same court and Justice, entered September 22, 2015, which denied plaintiff's motion to remove defendant Mercy Tella as a necessary party to this action, and proceed without her, unanimously affirmed, without costs.

Plaintiff's excuse for its delay in moving for a default judgment indicates that there was activity well within the one-year period specified in CPLR 3215(c) (see Pappoe v. Custodio, 156 A.D.2d 211 [1st Dept 1989] ).  Defendant Tella offers no excuse for her default in answering the complaint, and her attempt to challenge the sufficiency of the documents underlying plaintiff's motion for a default judgment is unpreserved and in any event unavailing.  Plaintiff's proof of service, the summons and complaint, and Tella's default in answering when served with process, in conjunction with “[the] affidavit of merit by the current loan servicer/assignee of the note and mortgage, who averred facts which constitute cognizable claims for foreclosure and sale against the obligor/mortgagor defendant[ ],” are sufficient to support plaintiff's motion (BAC Home Loan Servicing, LP v. Betram, 51 Misc.3d 770, 2016 N.Y. Slip Op 26053, *6 [Sup Ct, Suffolk County Jan. 7, 2016];  see also HSBC Bank USA, N.A. v. Spitzer, 131 AD3d 1206 [2d Dept 2015] ).

Plaintiff failed to demonstrate that it waived its right to assert a deficiency judgment against Tella, and, thus, failed to establish that Tella is not a necessary or indispensable party who can be severed from these proceedings (see Federal Natl. Mtge. Assn. v Connelly, 84 A.D.2d 805, 805 [2d Dept 1981] ).

_

CLERK