Wells Fargo Bank, N.A. v Bowie

Wells Fargo Bank, N.A. v Bowie 2011 NY Slip Op 08352 Decided on November 15, 2011 Appellate Division, Second 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 November 15, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
RANDALL T. ENG
JEFFREY A. COHEN, JJ.
2010-08610
(Index No. 4036/09)

[*1]Wells Fargo Bank, N.A., etc., respondent,

v

Patrick Bowie, et al., defendants, Fircy A. Nunez, etc., appellant.




Bailly and McMillan, LLP, White Plains, N.Y. (John J. Bailly of
counsel), for appellant.
Steven J. Baum, P.C., Amherst, N.Y. (Casey E. Callanan and
Jason B. Desiderio of counsel), for
respondent.


DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendant Fircy A. Nunez appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated June 21, 2010, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, and denied his cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Fircy A. Nunez (hereinafter the appellant) took title to the real property at issue in this matter, subject to the mortgage given by the defendant Patrick Bowie and held by the plaintiff. The plaintiff subsequently brought this foreclosure action on that mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellant, and the appellant cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. The Supreme Court, among other things, granted the aforementioned branch of the plaintiff's motion and denied the appellant's cross motion. The only contention asserted by the appellant on this appeal is that the plaintiff was not entitled to summary judgment, and that the Supreme Court should have dismissed the complaint, because service upon Bowie was not properly made. The appellant, however, lacks standing to contest the validity of service upon Bowie inasmuch as that claim is personal to Bowie, and thus may be raised, if at all, only by Bowie (see NYCTL 1996-1 Trust v King, 13 AD3d 429, 430; NYCTL 1996-1 Trust v King, 304 AD2d 629; Home Sav. of Am. v Gkanios, 233 AD2d 422, 423). Accordingly, the appellant's contention affords him no basis for relief. We note that the appellant does not claim on appeal that the plaintiff did not properly serve him with the complaint.
DILLON, J.P., BALKIN, ENG and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court