Deutsche Bank Natl. Trust Co. v Hunter

Deutsche Bank Natl. Trust Co. v Hunter 2012 NY Slip Op 07781 Decided on November 14, 2012 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 14, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
ANITA R. FLORIO
PLUMMER E. LOTT
ROBERT J. MILLER, JJ.
2011-03017
(Index No. 17692/07)

[*1]Deutsche Bank National Trust Company, etc., respondent,

v

Stefane Hunter, appellant, et al., defendants.




Patrick H. Jones, New York, N.Y., for appellant.


DECISION & ORDER

In an action to foreclose a mortgage, the defendant Stefane Hunter appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered February 23, 2011, which denied her motion, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate a judgment of foreclosure and sale of the same court dated July 13, 2009, entered upon her default in appearing or answering the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant moved, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate a judgment of foreclosure and sale that was entered upon her default in appearing or answering the complaint. The defendant argued that the plaintiff lacked standing to commence the foreclosure action, and therefore, the plaintiff committed fraud upon the court and the court lacked subject matter jurisdiction over the matter. The Supreme Court denied the motion, and the defendant appeals.

The defendant's arguments pursuant to CPLR 5015(a)(3) and (4) are without merit, as the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244). Accordingly, the Supreme Court properly denied the defendant's motion, inter alia, to vacate the judgment of foreclosure and sale.
SKELOS, J.P., FLORIO, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court