Opinion
2017–00106 Index No. 6154/11
02-27-2019
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS, LLC, Respondent, v. Franshara HUNTER, Appellant, et al., Defendants.
Franshara Hunter, Jamaica, NY, appellant pro se. Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent.
Franshara Hunter, Jamaica, NY, appellant pro se.
Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Franshara Hunter appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered May 9, 2016. The order denied the defendant Franshara Hunter's motion to vacate an order of reference of the same court dated December 17, 2015.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action on March 14, 2011, to foreclose on the mortgage of the defendant Franshara Hunter (hereinafter the defendant). A process server submitted an affidavit stating that she served the defendant with the summons and complaint. The defendant failed to answer the complaint.
In an order dated December 17, 2015, the Supreme Court granted the plaintiff's motion for an order of reference. In an affidavit submitted in opposition to that motion, the defendant argued that the plaintiff lacked standing to foreclose, because it was not the owner of the note or the mortgage. The defendant did not address her failure to answer the complaint.
By notice of motion dated March 4, 2016, the defendant moved to vacate the order of reference, again arguing that the plaintiff lacked standing to foreclose the mortgage. The Supreme Court denied the motion, and the defendant appeals.
We agree with the Supreme Court's determination denying the motion. The defendant failed to address her default in answering the complaint (see generally Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776, 51 N.Y.S.3d 523 ). Therefore, the defendant waived the defense of lack of standing (see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301 ).
The defendant's remaining contentions are improperly raised for the first time on appeal (see Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 1178, 9 N.Y.S.3d 312 ).
MASTRO, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.