Opinion
No. 567 Index No. 380871/11 Case No. 2022-00962
06-29-2023
Deustche Bank National Trust Company etc., Plaintiff-Appellant, v. Bernarda Procel et al., Defendants-Respondents, Continente Corporation et al., Defendants.
Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury (Joseph F. Battista of counsel), for appellant.
Robertson, Anschutz, Schneid, Crane & Partners PLLC, Westbury (Joseph F. Battista of counsel), for appellant.
Before: Kapnick, J.P., Friedman, Gesmer, González, Higgitt, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 6, 2016, which denied plaintiff's motion for a judgment of foreclosure and sale, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The court erred in finding that triable issues of fact precluded granting plaintiff a judgment of foreclosure and sale. Having failed to timely answer the complaint or make a pre-answer motion to dismiss, and having made no attempt to vacate their default or provide a reasonable excuse for the default, defendants waived their defense that plaintiff lacked standing to bring this action (see U.S. Bank N.A. v Goldberger, 211 A.D.3d 1077, 1078 [2d Dept 2022]; Aurora Loan Services, LLC v Jemal, 205 A.D.3d 661, 663 [2d Dept 2022]). Moreover, defendants' default precluded them from asserting that plaintiff's assignor violated Banking Law § 6-l (see U.S. Bank N.A. v Sherwood, 181 A.D.3d 469 [1st Dept 2020]; Whittemore v Yeo, 112 A.D.3d 475, 476 [1st Dept 2013]), which, in any event, was not in effect in that form at the time the loan was made in 2006 (Endeavor Funding Corp. v Allen, 102 A.D.3d 593, 594 [1st Dept 2013]).