M & T Bank v Romero

[*1] M & T Bank v Romero 2013 NY Slip Op 51147(U) Decided on July 11, 2013 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 11, 2013
Supreme Court, Suffolk County

M & T Bank, Plaintiff,

against

Manuel Romero, CHASE BANK, NA, JP MORGAN CHASE BANK, NA., LUCREZIA MANNINO, THE CIT GROUP, CONSUMER FINANCE INC. (NY), CARLOS LOPEZ, CITI MORTGAGE, INC., DALIA ROMERO, DARWIN LOPEZ, JULIANN ROMERO, MANUEL ROMERO, JR., Defendants.



48207-09



FRENKEL, LABMERT, et.al., LLP.

Attys. For Plaintiff

20 West Main Street

Bay Shore, NY 11706

KAREN FERRARE, PC

Atty for Def. Manuel Romero

162 Post Avenue

Westbury, NY 11590

Thomas F. Whelan, J.

ORDERED that this motion (#005) by the mortgagor defendant, Manuel Romero, for an order preliminarily and permanently enjoining the plaintiff from selling or encumbering the mortgaged premises or in any way interfering with the moving defendant's quiet use and enjoyment thereof and for an order dismissing this action or vacating the moving defendant's default, the order of reference and judgment of foreclosure with leave to file a late answer is considered under CPLR 6311, 5015, 317 and 3012 and is denied.

On December 8, 2009, the plaintiff commenced this action to foreclose an August 16, 2006 mortgage securing a mortgage note of the same date given by defendant Romero to First West Mortgage Bankers, Ltd. in connection with the purchase of residential real property located in Brentwood, New York. The note contains on the face thereof a special indorsement dated August 16, 2006, in favor of the M & T Mortgage Corporation, to whom the plaintiff is a successor by merger under a merger agreement dated October 25, 2006. On December 2, 2009, a nominee of the original lender, which was named as mortgagee of record in the mortgage indenture, executed an assignment of the note and mortgage to the plaintiff. Said assignment was recorded in the office of the County Clerk on January 19, 2010.

In its complaint, the plaintiff alleges that defendant Romero defaulted in making the payments due under the terms of the note and mortgage in July of 2009. Shortly after the commencement of this action by filing, defendant Romero was served with the summons and complaint on December 12, 2009 at the mortgaged premises pursuant to CPLR 308(2). Defendant Darwin Lopez, a son of the moving defendant's then wife, Dalia Romero, was at the premises when service was effected and was the person of suitable age and discretion to whom the process server delivered the summons, complaint and the RPAPL 1303 notice on separate blue paper. No appearance by answer or otherwise was made by the moving defendant or any other defendants joined by service of process.

Within two months of the filing of the complaint, the procedures of the type required by CPLR 3408 were undertaken by personnel assigned to the specialized mortgage foreclosure conference part of this court and a screening conference was scheduled for February 18, 2010. Defendant Romero asserts that on January 25, 2010 his wife advised him that the court had noticed a conference in this action for February 18, 2010 and that he appeared on that date for the conference. However, court records indicate otherwise as the matter was marked "no appearance defendant" by quasi-judicial personnel in the specialized mortgage foreclosure conference part. In accordance with established practice and procedures, the action was then "released" from such part and assigned to IAS Part 13, over which Melvyn Tanenbaum, J.S.C. then presided.

The plaintiff thereafter moved for an order of reference pursuant to RPAPL 1321 by motion [*2]returnable before Justice Tanenbaum on June 10, 2010. On that return date, a written request for a settlement conference by the defendant was received and granted by the scheduling of such a conference before Justice Tanenbaum for July 16, 2010. However, by order dated June 24, 2010, Justice Tanenbaum recused himself and the conference, together with the pending motion, were adjourned. On July 2, 2010, the matter was assigned to Justice Denis F. Molia and the conference was adjourned to August 5, 2010 together with the motion. On August 5, 2010, the plaintiff's motion for an order of reference was adjourned to September 24, 2010, while the conference was adjourned by Justice Molia to September 22, 2010, on which date it was marked "settlement conference held".

Meanwhile, the plaintiff's motion for an order fixing the defaults in answering of all defendants and appointing a referee to compute, which was renumbered as 002 upon the recusal of Justice Tanenbaum, was finally calendared before Justice Molia on November 19, 2010 and marked submitted on that date. By order dated November 24, 2010, the motion was granted and the defaults in answering of all defendants were fixed and determined. A copy of the November 24, 2010 order of reference, with notice of its entry on December 14, 2010, was served upon the moving defendant by plaintiff's counsel on January 5, 2011. In November of 2012, the plaintiff moved for a judgment of foreclosure and sale upon confirmation of the report of the referee to compute. The motion was granted by order dated December 12, 2012 (Molia, J), and it was served upon the moving defendant with notice of its entry in January of 2013.

By the instant motion (#005), the mortgagor defendant, Manuel Romero, moves for injunctive relief and/or a stay of the public sale of the mortgaged premises directed in the judgment dated December 12, 2012 and for a vacatur of said judgment, the order of reference and his default in answering together and dismissal of the complaint or leave to file a late answer. Although Acting Justice Molia signed the March 18, 2013 order to show cause by which the motion was interposed, she recused herself from all matters including determination of this motion on June 7, 2013, nearly two months after its April 19, 2013 submission date. The case was then assigned to this court and the instant motion calendared for June 21, 2013.

In his moving papers, defendant Romero claims an entitlement to a stay of the foreclosure sale and to a dismissal of this action for lack of subject matter jurisdiction, standing, failure to state a claim and failure to comply with certain "notice" predicates to foreclosure pursuant to CPLR 3211(a). He alternatively seeks relief from his default in answering and a vacatur of the judgment and underlying order of reference which fixed that default pursuant to CPLR 317, "or in the alternative CPLR 5015(a)(4)". While not advanced in his notice of motion, a claim for dismissal of the complaint under CPLR 5015(a)(4) is set forth in the affirmation of the moving defendant's counsel (see ¶ 48 of supporting affirmation of defense counsel dated March 14, 2013). A proposed answer containing fifteen affirmative defenses that is verified by defense counsel is attached to the moving papers in apparent support of the moving defendant's application for vacatur of his default in answering pursuant to CPLR 317. The plaintiff opposes the motion on various grounds, in response to which, the moving defendant replied by affirmation of his counsel. For the reasons stated below, the motion is denied. [*3]

Relief from defaults may be premised upon various grounds, most of which are provided in statutory enactments. Where such an application is premised upon a claim that the court lacked jurisdiction over the person of the defendant or the subject matter of the action, the movant need only establish the asserted lack of jurisdiction in order to nullify any order or judgment in favor of the plaintiff and gain dismissal of the complaint (see Dime Sav. Bank of Williamsburg v 146 Ross Realty, 106 AD3d 863, 966 NYS2d 443 [2d Dept 2013]; Toyota Motor Credit Corp. v Hardware Lam, 93 AD3d 713, 939 NYS2d 869 [2d Dept 2012]; Prudence v Wright, 94 AD3d 1073, 943 NYS2d 185 [2d Dept 2012]; Fleisher v Kaba, 78 AD3d 1118, 912 NYS2d 604 [2d Dept 2010]; Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074, 899 NYS2d 269 [2d Dept 2010]; Harkless v Reid, 23 AD3d 622, 622, 806 NYS2d 214 [2d Dept 2005]). A successful application for for vacatur of a default on subject matter jurisdictional grounds results in a dismissal of the complaint since such jurisdiction may not be conferred upon the court by consensus of the parties or otherwise (see Stoffer v Department of Public Safety of Town of Huntington, 77 AD3d 305, 907 NYS2d 38 [2d Dept 2010]). Where the jurisdictional defect is one of personal jurisdiction, the successful movant may seek immediate dismissal (see Toyota Motor Credit Corp. v Hardware Lam, 93 AD3d 713, supra). Since, however, the lack of personal jurisdiction is a waivable defect, a successful movant may seek leave to so appear and immediately defend against the plaintiff's claims in the pending action (see Equicredit Corp. of Am. v Campbell, 73 AD3d 1119, 900 NYS2d 907 [2d Dept 2010]; Ramirez v Romualdo, 25 AD3d 680, 808 NYS2d 733 [2d Dept 2006]; see also Prudence v Wright, 94 AD3d 1073, supra; Dupps v Betancourt, 99 AD3d 855, 952 NYS2d 585 [2d Dept 2012]; Hossain v Fab Cab Corp., 57 AD3d 484, 868 NYS2d 746 [2d Dept 2008]).

Non- jurisdictional grounds for vacatur generally rest upon a showing of a reasonable excuse for the default and a meritorious defense to the action (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890, 909 NYS2d 642 [2d Dept 2010], quoting Lipp v Port Auth. of NY & NJ, 34 AD3d 649, 649, 824 NYS2d 671 [2d Dept 2006]; see also Midfirst Bank v Al-Rahman, 81 AD3d 797, 917 NYS2d 871 [2d Dept 2011]; Karalis v New Dimensions HR, Inc, 105 AD3d 707, 962 NYS2d 647 [2d Dept 2013]; Swedbank, AB v Hale Ave. Borrower, LLC, 89 AD3d 922, 932 NYS2d 540 [2d Dept,2011]; Community Preservation Corp. v Bridgewater, 89 AD3d 784, 932 NYS2d 378 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Rudman, 80 AD3d 651, 914 NYS2d 672 [2d Dept 2010]). This standard governs applications made on grounds of excusable default that are made both prior and subsequent to a formal fixation of a default on the part of the defendants by the court pursuant to CPLR 5015(a)(1) or 3012(d) (see Bank of New York v Espejo, 92 AD3d 707, 939 NYS2d 105 [2d Dept 2012]; Integon Natl. Ins. Co. v Norterile, 88 AD3d 654, 930 NYS2d 260 [2d Dept 2011]; Ennis v Lema, 305 AD2d 632, 760 NYS2d 197 [2d Dept 2003]; Landa, Picard & Weinstein v Ruesch, 102 AD2d 813, 476 NYS2d 383 [2d Dept 1984] cf., Guzetti v City of New York, 32 AD3d 234, 820 NYS2d 29 [1st Dept 2006]). Where the application successfully results in a vacatur of the default, the moving defendant will be afforded the opportunity to appear by answer and defend by contesting the merits of the plaintiff's claims. Consequently, motions pursuant to CPLR 50515(a)(1) and/or 3012(d) should include a proposed answer verified by one having knowledge of facts constituting a potentially meritorious defense (see CPLR 3012[d]; Ogman v Mastrantonio Catering, Inc., 82 AD3d 852, 918 NYS2d 375 [2d Dept 2011]; Gross v Kail, 70 AD3d 997, 893 NYS2d 891 [2d Dept 2010]; Baldwin v Mateogarcia, 57 AD3d 594, 869 NYS2d [*4]217 [2d Dept 2007]; Bekker v Fleischman, 35 AD3d 334, 825 NYS2d 270 [2d Dept 2006]). Where the motion is supported only by an affirmation of counsel or a proposed answer that is verified only by counsel without first hand knowledge of the facts alleged, no showing of a meritorious defense is made (see Karalis v New Dimensions HR, Inc, 105 AD3d 707, supra).

The vacatur of a default on an excusable default ground that is expressly provided by statute is available under CPLR 317 to all persons to whom the summons with notice and/or complaint were delivered to the defendant or his or her agent other than by personal delivery under CPLR 308(1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 501 NYS2d 8 [1986]). A defendant moving under CPLR 317 must establish that he or she did not personally receive notice of the summons in time to defend and that he or she possesses of a meritorious defense to the claim of the plaintiff. No demonstration of a reasonable excuse is necessary, since the statute itself provides for same, namely, non-receipt of personal notice of the summons in time to defend (id.). If the motion, timely made, is granted, the moving defendant will be allowed to appear in the action and defend upon the merits and if successful in such defense, the court may order restitution as if any judgment rendered therein was reversed or modified on appeal (see CPLR 317; Maron v Crystal Bay Imports, Ltd., 99 AD3d 867, 952 NYS2d 602 [2d Dept 2012]). An affidavit of merit by the moving defendant or a proposed answer, verified by defendant containing assertion of facts which potentially constitute at least one bona fide defense must be attached to the motion papers (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of the State of Pennsylvania, 16 AD3d 391, 791 NYS2d 145 [2d Dept 2005]; Hilldun Corp. v Scarboro Textiles, Inc., 73 AD2d 535, 422 NYS2d 417 [1st Dept 1979]; cf., Smith v Smith, 291 AD2d 828, 736 NYS2d 557 [4th Dept 2002]; Frank v Martuge, 285 AD2d 938, 728 NYS2d 315 [3d Dept 2001]).

It is well settled that a party in default may not seek affirmative relief such as dismissal of an action or injunctive relief absent the vacatur of such default unless the vacatur application is premised upon jurisdictional grounds of the type that render a judgment or order issued in the action a nullity (see US Bank Natl. Ass'n v Gonzalez, 99 AD3d 694, 952 NYS2d 59 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v Stathakis, 90 AD3d 983, 935 NYS2d 651 [2d Dept 2011]; Holubar v Holubar, 89 AD3d 802, 934 NYS2d 710 [2d Dept 2011]; McGee v Dunn, 75 AD3d 624, 624, 906 NYS2d 74 [2d Dept 2010]; US Bank Natl. Ass'n v Vardales, 39 Misc 3d 1211[A], 2013 WL 1490658 [Sup. Ct. Suffolk County 2013]; Deutsche Bank Natl. Trust Co. v Young, 2012 WL 6019543 [Sup. Ct. Suffolk County 2012]). Here, moving defendant Romero defaulted in answering the summons and complaint served upon him in December of 2009 and such default was fixed and determined in the order of reference issued on November 24, 2010. In light of his status as a party in default, the moving defendant is not entitled to affirmative relief of a non-jurisdictional nature such as a dismissal of the plaintiff's complaint pursuant to CPLR 3211 or injunctive relief of any kind absent the vacatur of his default upon the grounds enumerated in CPLR 5015, 317, 3012(d) or others available to him, if any (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]; Bay Crest Ass'n, Inc. v. Paar, 99 AD3d 744, 952 NYS2d 211 [2d Dept 2012]).

It is against this backdrop of legal maxims that the court will consider defendant Romero's demands for relief. Since the demand for relief pursuant to CPLR 5015(a) (4) is jurisdictional in [*5]nature, its shall be addressed first.

To succeed on a motion to vacate a judgment for lack of in personam jurisdiction in cases wherein a process server's affidavit is before the court, the moving defendant must rebut the prima facie evidence of proper service established by such affidavit by the submission of a rebuttal affidavit replete with specific and detailed allegations of fact that interdict those asserted in the process servers' affidavit (see Wachovia Bank, Natl. Ass'n. v Carcano, 106 AD3d 726, 964 NYS2d 246 [2d Dept 2013]; ACT Prop., LLC v Ana Garcia, 102 AD3d 712, 957 NYS2d 884 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; Bank of NY v Espejo, 92 AD3d 707, 939 NYS2d 105 [2d Dept 2012]). Bare, conclusory and unsubstantiated denials of receipt of process are insufficient to rebut the presumption of proper service created by the affidavit of the plaintiff's process server and to require a traverse hearing (see US Bank Natl. Assn. v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013]; Stevens v Charles, 102 AD3d859, 958 NYS2d 722 [2d Dept 2013]; NYCTL 2009-A Trust v Tsafatinos, 101 AD3d 1092, 956 NYS2d 571 [2d Dept 2012]; Stevens v Charles, 102 AD3d 763, 958 NYS2d 443 [2d Dept 2013]; Bank of NY v Espejo, 92 AD3d 707, supra; Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 826, 954 NYS2d 577 [2d Dept 2012]; US Bank v Melton, 99 AD3d 742, 934 NYS2d 352 [2d Dept 2011]; Bank of New York v Segui, 68 AD3d 908, 890 NYS2d 830 [2d Dept 2009]; Irwin Mtge. Corp. v Devis, 72 AD3d 743, 898 NYS2d 854 [2d Dept 2010]).

Here, the affidavit of the plaintiff's process server constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(2) and of the notice required by Real Property Actions and Proceedings Law § 1303, by delivery to a person of suitable age and discretion at the mortgaged premises, which were described as the dwelling place of defendant Romero, and by mail to such premises. Defense counsel's challenges to the affidavit of service of the summons and complaint, the1303 notice by Thomas Burke and those aimed at the affidavit of service of the CPLR 3215(g) additional mailing of the summons and complaint to the mortgaged premises by Jeanine Joseph are either non-probative (see US Bank v Melton, 99 AD3d 742, supra), or wholly lacking in merit as the claimed "defects" are without support in the record (see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 826, supra; Gray-Joseph v Shuhai Liu, 90 AD3d 988, 934 NYS2d 868 [2d Dept 2011]). The defendant's bare and unsubstantiated denial of receipt of the process and other papers that were both delivered and mailed to his "dwelling place" at the address of the mortgaged premises was insufficient to rebut the presumption of proper service (see US Bank Natl. Ass'n v Tate, 102 AD3d 859, supra; Stevens v Charles, 102 AD3d 763, supra; Bank of NY v Espejo, 92 AD3d 707, supra; Deutsche Bank Natl. Trust Co. v Matos, 77 AD3d 606, 908 NYS2d 732 [2d Dept 2010]; Facey v Heyward, 244 AD2d 452, 664 NYS2d 119 [2d Dept 1997]).

In addition, defendant Romero's nuanced claims that the mortgaged premises may not have been his dwelling place or usual place of abode because he was "in the process of going through a divorce with his ex-wife" are similarly unavailing. Defendant Romero makes no claim that he resided elsewhere and offers no alternate address as his dwelling place of his usual place of abode at the time of service (see Argent Mtge. Co., LLC v Vlahos, 66 AD3d 721, 887 NYS2d 225 [2d Dept 2009]; Vitello v Rizzo, 298 AD2d 452, 748 NYS2d 280 [2d Dept. 2002]; CC Home Lenders v [*6]Cioffi, 294 AD2d 325, 742 NYS2d 101 [2d Dept 2002]; Federal Home Loan Mtge. Corp. v Venticinque, 230 AD2d 412, 658 NYS2d 689 [2d Dept 1997]). Defendant Romero's affidavit was devoid of factual allegations tending to establish a jurisdictional defect in the service effected upon him pursuant to CPLR 308(2) which would warrant dismissal of the complaint and it did not give rise to questions of fact warranting a hearing on the issue service. Those portions of this motion wherein defendant Romero seeks a vacatur of his default together with all proceedings premised thereon and a dismissal of the plaintiff's complaint pursuant to CPLR 5015(a)(4) are denied.

The moving papers advance a second jurisdictional claim which is premised upon a purported lack of subject matter for which dismissal of the complaint is demanded pursuant to CPLR 3211(a)(2). However, these demands for dismissal are not supported by any allegations, let alone proof, that this court is without subject matter jurisdiction over claims for foreclosure and sale of real property situated in New York, let alone Suffolk County, New York (see McKinney's Const. Art. 6, § 7[a]; Judiciary Law § 140-b; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 604 NYS2d 879 [1993]; [Supreme Court is vested with general original jurisdiction and is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed elsewhere in the Constitution or in the Constitution of the United States]; Lischinskaya v Carnival Corp., 56 AD3d 116, 865 NYS2d 334 [2d Dept 2008]; HSBC Guyerzeller Bank AG v Chascona N.V.,42 AD3d 381, 841 NYS2d 11 [1st Dept 2007]).

To the extent that defendant Romero and his counsel contend that dismissal for want of subject matter jurisdiction is warranted due to a purported lack of standing on the part of the plaintiff, such contentions are without merit. It is now abundantly clear from appellate case authorities issued by the Second Department and others that a lack of standing does not constitute a jurisdictional defect (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 962 NYS2d 301 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 954 NYS2d 181 [2d Dept 2012]; Bank of NY v Alderazi, 99 AD3d at 838, 951 NYS2d 900 [2d Dept 2012]; U.S. Bank v Emmanuel, 83 AD3d 1047, 921 NYS2d 320 [2d Dept 2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243€"244, 837 NYS2d 247 [2d Dept 2007]; HSBC Guyerzeller Bank AG v Chascona N.V., 42 AD3d 381, supra; see also Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674, supra). The moving defendant's demands for dismissal of the complaint due to a purported lack of subject matter jurisdiction are thus rejected as unmeritorious.

Defendant Romero's efforts to vacate his default, the judgment and the underlying order of reference are principally dedicated to his claim for such relief under the discretionary remedy afforded by CPLR 317. As indicted above, this statute affords a defendant not served by delivery in hand pursuant to CPLR 308(1) with an excusable default ground for his or her default, namely, non-receipt of personal notice of the summons in time to defend (see CPLR 317). As in the case of other excusable default grounds, the moving defendant must demonstrate his or her possession of a meritorious defense to the claims asserted (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, supra). A mere denial of receipt and/or an unsubstantiated claim of lack of service of the summons and complaint are insufficient to establish a lack of personal notice of the action in time to defend which precludes the granting of relief pursuant to CPLR 317 (see Bank of [*7]New York v Samuels, ___ AD3d ___2013 WL 2420719, supra; Stevens v Charles, 102 AD3d 763, supra; Act Prop., LLC v Garcia, 102 AD3d 712, supra; Hildago v Cruiser Taxi Corp., 101 AD3d 950, 957 NYS2d 222 [2d Dept 2012]; Wassertheil v Elburg, LLC, 94 AD3d 753, 941 NYS2d 679 [2d Dept 2012]). Here, defendant Romero's conclusory denials of receipt of notice of the summons and complaint and RPAPL § 1303 notice on separate blue paper attested to by the plaintiff's process server are unsubstantiated. Moreover, the defendant's admission that he was apprised by his wife on January 25, 2010 of the scheduling of a settlement conference by the court for February 18, 2010 further undermines any claim of non-receipt of personal notice of the summons in time to defend in light of the completion of service on December 26, 2010 (see CPLR 308[2]; CPLR 320[a]). These circumstances, coupled with the inordinate delay in the interposition of this motion, warrant the denial of the defendant's application for relief pursuant to CPLR 317 without consideration of the issue of the defendant's possession of any meritorious defense.

Even if the court were to consider the defenses advanced, they are all unavailing. The standing defense is defeated by the special indorsement on the face of the note and the plaintiff's proof of delivery to its predecessor-in-interest (see Deutsche Bank Natl. Trust Co. v Whalen, ___ AD3d___, 2013 WL 3198184 [2d Dept 2013]; US Bank Natl. Ass'n v Cange, 96 AD3d 825, 947 NYS2d 522 [2d Dept 2012]; Deutsche Bank Trust Co. Am. v Codio, 94 AD3d 1040, supra; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 838 NYS2d 622 [2d Dept 2007]). The plaintiff's merger with the special indorsee vested in it the requisite standing to commence and prosecute its pleaded claims for foreclosure and sale (see Banking Law § 602; Capital One, N.A. v Brooklyn Flatiron, LLC, 85 AD3d 837, 925 NYS2d 350 [2011]; Ladino v Bank of America, 52 AD3d 571, 861 NYS2d 683 [2d Dept 2008]; Barclay's Bank of New York, N.A. v Smitty's Ranch, 122 AD2d 323, 504 NYS2d 295 [2d Dept 1986]). The moving defendant's complaints about the assignment executed by the "mortgagee of record" as nominee of the original lender are thus irrelevant (see Deutsche Bank Natl. Trust Co. v Whalen, ___ AD3d___, 2013 WL 3198184, supra). The moving defendant's conclusory denials of service and receipt of the notices required by RPAPL §§ 1303 and 1304 do not establish the absence of the serving and sending of such notices by the plaintiff or its agents (see US Bank Natl. Assn. v Tate, 102 AD3d 859, supra; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, supra; Aurora Loan Services, LLC v Weisblum, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]).

Nor do the asserted defenses constitute independent grounds for dismissal of the plaintiff's complaint on grounds of lack of standing and/or capacity to sue or legal insufficiency due to purpoted failures to satisfy foreclosure predicates. As indicated above, a standing defense is not jurisdictional in nature (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, supra; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 954 NYS2d 181 [2d Dept 2012]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243€"244, supra). Instead, the defense of standing is merely an affirmative defense which is waived if not raised in a timely pre-answer motion to dismiss or in an answer (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, supra; Bank of New York v Alderazi, 99 AD3d 837, 951 NYS2d 900 [2d Dept 2012]; U.S. Bank Natl. Ass'n v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Citibank, N.A. v Swiatkowski, 98 AD3d 555, 949 NYS2d 635 [2d Dept. 2012]; U.S. Bank v Emmanuel, 83 AD3d 1047, 921 NYS2d 320 [2d Dept [*8]2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, supra). Here, the standing defense was waived by the moving defendant's failure to assert same in a timely pre-answer motion to dismiss or in an answer served in response to the summons and complaint. Since the moving defendant's default has not been vacated, he may not seek the affirmative relief of dismissal on his waived standing defense (see US Bank Natl. Ass'n v Gonzalez, 99 AD3d 694, supra; Deutsche Bank Trust Co., Am. v Stathakis, 90 AD3d 983, supra; Holubar v Holubar, 89 AD3d 802, supra; McGee v Dunn, 75 AD3d 624, supra; Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674, supra; Deutsche Bank Nat. Trust Co. v Espinoza, 39 Misc 3d 1238(A), 2013 WL 2493846 [Sup. Ct. Suffolk County 2013]).

Nor does the purported failure to comply with the notice requirements of RPAPL § 1304 give rise to an independent ground for an immediate dismissal of the complaint on this motion by a defendant in default. That the failure to comply with the notice requirements of RPAPL 1304 is not a jurisdictional defect is clear (see Pritchard v Curtis, 101 AD3d 1502, 957 NYS2d 440 [3d Dept 2012]; Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674, supra; Citimortgage v Pembelton, 39 Misc 3d 454, 960 NYS2d 867 [Sup. Ct. Suffolk County 2013]). While the Second Department has instructed that the notice requirements of RPAPL § 1303 and § 1304 are conditions precedent to suit which, unlike affirmative defense, are not waived if not timely asserted in a pre-answer motion to dismiss or answer, the absence of, or defects in, such notices must be asserted during the action prior to judgment (see Aurora Loan Serv., LLC v Weisblum, 2011, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]; First Natl. Bank of Chicago v Silver, 73 AD3d 162, 899 NYS2d 256 [2d Dept 2010]).

This action was concluded as to all questions at issue between the parties and all matters of defense which were or could have been raised upon the grant of the judgment of foreclosure and sale to the plaintiff in November of 2012 (see 83-17 Broadway Corp v Debcon Financial Services Inc., 39 AD3d 583 835 NYS2d 602 [2d Dept 2007]). The moving defendant's attempt on this motion to vacate his default was unsuccessful. Defendant Romero is thus without an entitlement to move for the affirmative relief of dismissal due to a purported failure on the part of the plaintiff to comply with the notice provisions of RPAPL § 1304 (see US Bank Natl. Ass'n v Gonzalez, 99 AD3d 694, supra; Holubar v Holubar, 89 AD3d 802, Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674, supra; Aurora Loan Serv., LLC v Weisblum, 2011, 85 AD3d 95, surpa; Citimortgage v Pembelton, 39 Misc 3d 454, supra).

Finally, the court finds that the defendant is not entitled to any of the injunctive relief demanded by him since he has no asserted claim that would provide the jurisdictional predicate necessary to support a demand for injunctive relief (see CPLR 6301; BSI, LLC v Toscano, 70 AD3d 741, 896 NYS2d 102 [2d Dept 2010]).

In view of the foregoing, the instant motion (#005) by defendant Romero for injunctive relief in the form of a stay of the impending sale of the mortgaged premises, a vacatur of his default and other relief is denied. [*9]

Dated: July2013_____________________________

THOMAS F. WHELAN, J.S.C.