Deutsche Bank Natl. Trust Co. v Ned

Deutsche Bank Natl. Trust Co. v Ned 2014 NY Slip Op 01122 Decided on February 18, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 18, 2014
Sweeny, J.P., Renwick, Moskowitz, Richter, Gische, JJ.
11758N 380173/08

[*1]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.

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 (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [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 [*2]defendant waived this defense prior to alerting the court to the discrepancies.

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 18, 2014

CLERK