Opinion
16692/07.
Decided March 5, 2009.
Heather A. Johnson, Esq., Steven J. Baum, P.C., Attorneys for Plaintiff, Buffalo, NY.
Reginald A. Jacobs, Esq., Attorney for Defendants Feason Hinds, Bronx, NY.
Upon the foregoing papers it is ORDERED that the motion is granted. Defendant Hinds was 15 years and 9 months old when he was served with process on behalf of defendant Fearon and himself. As to service on defendant Fearon, Hinds was a person of suitable age and discretion to receive process (CPLR 308) and, therefore, jurisdiction was acquired over Fearon. Nyack Hous. Auth. v. Scott, 1 Misc.3rd 22 (App. Term 2d Dep't 2003); Room Additions v. Howard, 124 Misc 2d 19 (Civil Ct. Bronx 1984).
Service upon an infant (one below 18 years of age [CPLR 105 (j)] is governed by CPLR 309 (a) which requires that a parent or guardian be served, as well as the infant if he is over fourteen years of age. Failure to adhere to the requirements of CPLR 309 (a) presents jurisdictional defects and, where, as here, the parent is also sued individually, she must be served twice in her dual capacity as an individual and representative. Alexander, Practice Commentaries to CPLR 309, McKinney's Consol. Laws of New York, Book 7B (CPLR 307 to 500), pp. 105-07. That did not occur.
Additionally, pursuant to CPLR 1201, an infant with exceptions not relevant here, shall appear by a guardian ad litem. That has not occurred. However, that omission is curable prior to entry of judgment. Alexander, Practice Commentaries to CPLR 1201, McKinney's Consol.
Laws of New York, Book 7B (CPLR 1006 to 2200), p. 304. Default judgment was entered on February 29, 2008 when the infant was 16 years of age. This was a violation of CPLR 1203 which required an expiration of twenty (20) days from the appointment of a guardian ad litem before a default judgment may be rendered against an infant. Consequently, the judgment against defendant Hinds must be vacated. Alexander, Practice Commentaries to CPLR 1203, McKinney's supra, p. 331
Defendants Fearon and Hinds were residents at their mother's and grandmother's home. Apart from vacatur of the judgment as to defendant Hinds, defendant Fearon (and Hinds) argue that plaintiff lacks standing. At bar, the rights of innocent third-parties are not implicated as the foreclosing party, the plaintiff, was the successful bidder at the judicial sale.
The action was commenced by filing on August 31, 2007. By assignment dated September 5, 2007 made effective August 18, 2007, plaintiff became the assignee of the mortgage. There is no proof in the record before the Court that, on the date of the filing of this action, plaintiff was the owner of the note and mortgage. Therefore, the action must be dismissed for failure to prove that plaintiff had the note when the action was commenced. Kluge v. Fugazy, 145 AD 537 (2d Dep't 1988).
Also, this Court and others have previously held that a post commencement assignment with retroactive language does not confer standing to bring a foreclosure action. Greenpoint Mtge. Funding v. Nicastri, Sup. Ct. Westchester, Index No. 6056/08, decided 12/8/2008; U.S. Bank v. Kopcza, Sup. Ct. Westchester, Index No. 2023/07, decided 9/23/08; Suntrust Mtge. Inc. v. Pecora, Sup. Ct. Westchester, Index No. 1571/08, decided 9/22/08; Wells Fargo v. Marchione, Sup. Ct. Westchester, Index No. 24456/07, decided 2/14/08 (all of the aforementioned were decided by Lefkowitz, J.); Deutsche Bank v. Lopriore, Sup. Ct. Westchester, Index No. 11549/07, decided 8/8/08 (Loehr, J.); Deutsche Bank v. Richards, Sup. Ct. Westchester, Index No. 25367/07, decided 3/6/08 (Smith, J.); see, Countrywide Loans v. Taylor, 17 Misc.3rd 595 (Sup.Ct. Suffolk 2007).
Unlike the situation in Wells Fargo v. Mastropaolo, 42 AD3rd 239 (2d Dep't 2007) where the Appellate Division applied the waiver rule of CPLR 3211 (e) to the question of standing in that case an answer had been served without the affirmative defense of standing asserted here no answer was served by the pro se parties in default and even a review by them (if they had so chosen) of recorded documents when they were served on September 8, 2007, would not have revealed the standing issue as the assignment was recorded on October 10, 2007.
Accordingly, the Court concludes that movants did not waive their right to assert lack of standing and upon the authorities previously cited, the judgment is also vacated on this ground and the action is dismissed.