Opinion
2014-02-18
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Respondent, v. Michelle A. NED, Defendant–Appellant, Impac Funding Corporation, et al., Defendants.
Michael Kennedy Karlson, New York, for appellant. Stein, Wiener & Roth, LLP, Carle Place (Jonathan M. Cohen of counsel), for respondent.
Michael Kennedy Karlson, New York, for appellant. Stein, Wiener & Roth, LLP, Carle Place (Jonathan M. Cohen of counsel), for respondent.
SWEENY, J.P., RENWICK, MOSKOWITZ, RICHTER, GISCHE, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 21, 2012, which granted plaintiff's motion to vacate a prior order granting defendant Michelle A. Ned's motion to dismiss the complaint and vacating the Judgment of Foreclosure and Sale on default, and upon reconsideration, denied defendant's motion, and reinstated the Judgment of Foreclosure and Sale, unanimously affirmed, without costs.
In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made ( seeCPLR 320; Ohio Sav. Bank v. Munsey, 34 A.D.3d 659, 826 N.Y.S.2d 321 [2d Dept. 2006] ). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.
We have considered defendant's remaining contentions and find them unavailing.