Majority
In an action to foreclose a mortgage, the defendant Marjorie Avella appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 25, 2015, as denied that branch of her cross motion which was to dismiss the complaint for lack of standing.
Ordered that the order is affirmed insofar as appealed from, with costs.
In October 2013, the plaintiff commenced this action to foreclose a mortgage. The defendant Marjorie Avella (hereinafter the defendant) failed to timely appear or answer the complaint (see CPLR 320 [a]). Thereafter, in March 2014, the defendant, through counsel, served an answer, which alleged, as an affirmative defense, that the plaintiff lacked standing to commence this action. The plaintiff rejected the answer as untimely and advised the defendant that it would deem the untimely answer a notice of appearance by the defendant’s then-counsel.
Subsequently, in February 2015, the plaintiff moved for an order of reference and the defendant cross-moved, inter alia, to dismiss the complaint on the ground that the plaintiff lacked standing to commence the action. In the order appealed from, the Supreme Court, among other things, denied the defendant’s cross motion.
Accordingly, the Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the complaint on the ground that the plaintiff lacked standing to commence the action.
In light of our determination, we need not reach the defendant’s remaining contention.
Mastro, J.P., Austin, Sgroi and Maltese, JJ., concur.
Cases cited
- U.S. Bank National Ass'n v. Gulley 137 AD3d 1008 at 1009 p. 595
- FCDB FF1 2008-1 Trust v. Videjus 131 AD3d 1004 at 1004 p. 595
- Wells Fargo Bank Minnesota, National Ass'n v. Mastropaolo 42 AD3d 239 at 244 p. 595