Opinion
2016–07518 Index No. 9767/09
08-19-2020
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, respondent, v. Kenneth LEE, appellant, et al., defendants.
Kenneth Lee, Woodmere, NY, appellant pro se. Bonchonsky & Zaino LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.
Kenneth Lee, Woodmere, NY, appellant pro se.
Bonchonsky & Zaino LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order entered March 23, 2016, is affirmed, with costs.
In May 2009, the plaintiff commenced this action against, among others, the defendant Kenneth Lee (hereinafter the defendant) to foreclose a mortgage. The defendant failed to timely appear or answer the complaint. After an order of reference was entered on May 20, 2010, the plaintiff moved for a judgment of foreclosure and sale. In opposition to that motion, the defendant served the plaintiff with an affidavit, sworn to September 23, 2010, which contained the caption of this action and stated, at the outset, "[a]ppearing pro se, defendant Kenneth Lee duly sworn deposes and says" (emphasis added). In this affidavit, the defendant argued against the merits of this action relying on allegations of fraud, duress, and unclean hands. The defendant did not raise any issue as to personal jurisdiction or defective service of the papers at that time.
Thereafter, the plaintiff withdrew its motion for a judgment of foreclosure and sale and moved to vacate the May 2010 order of reference and for the issuance of a new order of reference. The defendant executed two stipulations concerning the adjournment of the motion to vacate the order of reference and for the issuance of a new one. A second order of reference was entered on May 12, 2014.
In October 2014, the plaintiff moved a second time for a judgment of foreclosure and sale. The defendant executed a stipulation adjourning this motion. Despite the adjournment, the defendant did not oppose the motion. On June 16, 2015, a judgment of foreclosure and sale was entered.
In November 2015, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction and for failure to comply with the statutory notice requirements of RPAPL 1303. The Supreme Court denied the motion. The defendant appeals.
"A defendant may waive the issue of ... personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss" ( Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 628, 990 N.Y.S.2d 522 ). A defendant "may appear informally by actively litigating the action before the court" ( Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481 ; see Finn v. Church for the Art of Living, Inc., 90 A.D.3d 826, 827, 935 N.Y.S.2d 93 ). "When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court's jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court" ( Taveras v. City of New York, 108 A.D.3d at 617, 969 N.Y.S.2d 481 ).
Here, by opposing the plaintiff's initial motion for a judgment of foreclosure and sale on the merits and seeking adjournments of the subsequent motions, the defendant engaged in significant activity after his statutory time to answer had expired, which amounted to an informal appearance (see HSBC Bank, USA, N.A. v. Taub, 170 A.D.3d 1128, 1130, 97 N.Y.S.3d 60 ; Aurora Loan Servs., LLC v. Colleluori, 170 A.D.3d 1097, 1098, 97 N.Y.S.3d 165 ). Consequently, the defendant waived any objection on the ground of lack of personal jurisdiction (see HSBC Bank USA, N.A. v. Taub, 170 A.D.3d at 1130, 97 N.Y.S.3d 60 ; Aurora Loan Servs., LLC v. Colleluori, 170 A.D.3d at 1098, 97 N.Y.S.3d 165 ). While this Court recognizes that there appears to have been an issue with the service of process upon the defendant in this action, such issue cannot be considered in light of the waiver.
RPAPL 1303 is a condition precedent to the commencement of a foreclosure action and the failure to comply is a basis for dismissal of a complaint which may be raised at any time while the action is pending (see Eastern Sav. Bank, FSB v. Tromba, 148 A.D.3d 675, 676, 48 N.Y.S.3d 499 ; First Natl. Bank of Chicago v. Silver, 73 A.D.3d 162, 163, 899 N.Y.S.2d 256 ). However, "[a] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" ( Signature Bank v. Epstein, 95 A.D.3d 1199, 1200, 945 N.Y.S.2d 347 [internal quotation marks omitted] ). Here, the defendant did not raise the issue of the plaintiff's purported failure to comply with RPAPL 1303 during the action, but only after the judgment of foreclosure and sale had been entered (see Wells Fargo Bank, N.A. v. Coffey, 177 A.D.3d 1022, 113 N.Y.S.3d 164 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and to dismiss the complaint.
CHAMBERS, J.P., AUSTIN, LASALLE and BARROS, JJ., concur.