Opinion
11378N Index 380586/11
04-09-2020
JP MORGAN CHASE BANK, N.A., Plaintiff–Respondent, v. Alexandra WHITE, also known as Alexandra Dowling, et al., Defendants. Adam Plotch, Non–Party–Appellant.
The Law Offices of Thomas J. Finn, Forest Hills (Thomas J. Finn of counsel), for appellant. McCalla Raymer Leibert Pierce, LLC, New York (Charles Jeanfreau of counsel), for respondent.
The Law Offices of Thomas J. Finn, Forest Hills (Thomas J. Finn of counsel), for appellant.
McCalla Raymer Leibert Pierce, LLC, New York (Charles Jeanfreau of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, González, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about April 4, 2018, which denied the motion of nonparty Adam Plotch to vacate a judgment of foreclosure and sale entered in plaintiff's favor on a condominium unit at 705 Purdy Street, in the Bronx, on September 15, 2015, and to vacate the summary judgment and default judgment order, entered on or about January 24, 2014, underlying said judgment of foreclosure and sale, unanimously affirmed, with costs.
Plotch acquired title to the subject property pursuant to a Referee's deed issued in a prior foreclosure action brought by the Condominium Board to enforce a lien for common charges. The Referee's deed was expressly subject to, inter alia, the mortgage lien owed to plaintiff's predecessor. Plotch's title, and status as the owner of the equity of redemption, made him an interested party, and gives him standing to oppose plaintiff's foreclosure action (see Deutsche Bank Natl. Trust Co. v. Tanibajeva, 132 A.D.3d 430, 431, 17 N.Y.S.3d 399 [1st Dept. 2015] ). Nonetheless, plaintiff's filing of the notice of pendency in May 2011 put all persons acquiring an interest in the property thereafter, including Plotch in February 2012, on constructive notice of the action. Plotch was thereby "bound by all proceedings taken in the action after such filing to the same extent as a party" ( CPLR 6501 ). Hence, while Plotch's ownership of the property made him an interested party, he "was not a necessary party, he being in no better position than a purchaser or incumbrancer whose interest is acquired by a conveyance subsequent to the filing of such notice and whose interest is deemed foreclosed as though he were an actual party to the action" ( Westchester Fed. Sav. & Loan Assn. v. H.E.W. Constr. Corp., 29 A.D.2d 670, 671, 286 N.Y.S.2d 382 [2d Dept. 1968], lv denied 21 N.Y.2d 646, 289 N.Y.S.2d 1027, 236 N.E.2d 864 [1968] ; see Novastar Mtge., Inc. v. Mendoza, 26 A.D.3d 479, 479–480, 811 N.Y.S.2d 411 [2d Dept. 2006] ). Hence, standing alone, Plotch's ownership of the equity of redemption did not entitle him to service of any of the papers herein and such lack of service does not vitiate the summary judgment order or judgment of foreclosure (see Citimortgage, Inc. v. Dulgeroff, 138 A.D.3d 419, 419, 29 N.Y.S.3d 291 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1081, 44 N.Y.S.3d 375, 66 N.E.3d 1093 [2016] ; Westchester Fed. Sav. & Loan Assn., 29 A.D.2d at 671, 286 N.Y.S.2d 382 ).
Plaintiff's failure to serve Plotch with a copy of the summary judgment/default judgment order, notwithstanding that order's directive that plaintiff do so, likewise does not constitute a jurisdictional defect or other basis for vacatur of that order. Nor has Plotch pointed to any injustice resulting from plaintiff's failure to serve him with a copy of the summary judgment order, since, as we find herein, summary judgment was properly granted (see Amalgamated Bank v. Helmsley–Spear, Inc., 25 N.Y.3d 1098, 1100, 14 N.Y.S.3d 312, 35 N.E.3d 480 [2015] ; Dulgeroff, 138 A.D.3d at 419, 29 N.Y.S.3d 291 ).
The "mislabeling" of the affidavit of service of the summary judgment/default judgment motion is a mere irregularity, which does not warrant denial of the underlying motion absent prejudice, which Plotch does not (and cannot) assert ( CPLR 2001 ; County of Nassau v. Cedric Constr. Corp., 100 A.D.2d 890, 891, 474 N.Y.S.2d 549 [2d Dept. 1984] ).
Plotch's arguments directed at the merits of plaintiff's motion for summary judgment/default judgment do not lie on this appeal from denial of his motion to vacate the summary judgment order and judgment of foreclosure (see Board of Mgrs. of Cent. Park Place Condominium v. Potoschnig, 178 A.D.3d 489, 489, 111 N.Y.S.3d 540 [1st Dept. 2019] ; Nichols v. Curtis, 104 A.D.3d 526, 529, 962 N.Y.S.2d 98 [1st Dept. 2013] ).
We have considered Plotch's other arguments and find them unavailing.