1. When a defendant completely fails to answer the Summons & Complaint and instead disputes service of process, they do not waive our rights to assert jurisdictional defenses including lack of subject matter jurisdiction. Cases hold that waiver of such rights only occurs when an answer was filed which does not contain certain defenses. In the matter of Deutsche Bank Nat. Trust Co. v. McRae (27 Misc.3d 247, 894 N.Y.S.2d 720, 2010 N.Y. Slip Op. 20020), the Plaintiff brought a motion for an order of reference where the defendant had failed to interpose an answer. The Plaintiff brought a motion to reargue after the motion for an order of reference was denied without prejudice as the Plaintiff had failed to submit evidence of proper assignment. Upon reargument, the court affirmed its prior order and held that:
“Although recent decisions by the Second Department have held that a defendant waives standing where it is not raised in the answer or pre-answer motion to dismiss (see, Wells Fargo Bank Minn. V. Mastropaolo, 42 A.D. 3d 239, 244, 837 N.Y.S. 2d 247 [2nd Dept. 2007]; HSBC Bank USA v. Dammond, 59 A.D.3d 679, 680, 875 N.Y.S.2d 490 [2nd Dept.2009]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135 [2nd Dept.2009])), those cases are distinguishable. In both Mastropaolo and Delphonse, the defendants filed answers containing either counterclaims or affirmative defenses without asserting a standing defense [see, Mastropaolo 42 A.D. 3d at 240, 837 N.Y.S. 2d 247; Delphonse, 64 A.D. 3d at 625, 883 N.Y.S. 2d 135]. In so doing, the defendants acknowledged that the plaintiff was a proper party for the prosecution of these foreclosure actions. By stark contrast, the Defendant has not appeared or filed an answer and therefore has not waived the right to challenge Plaintiff’s standing…” (emphasis added)
2. y attorney informs me that in the similar matter of Citigroup Global Markets Realty Corp. v. Randolph Bowling ( 25 Misc.3d 1244(A), 2009 WL 4893940 (N.Y.Sup.)) the Plaintiff here also moved for an Order of Reference where the Court raised the question of service and standing in the absence of any appearance by the defendant and dismissed the action without prejudice, sua sponte. Judge Carolyn E. Demarest ruled:
“Although recent decisions by the Second Department have held that a defendant waives the standing defense where it is not raised in the answer or pre-answer motion to dismiss (see Wells Fargo Bank Minn. V. Mastropaolo, 42 A.D. 3d 239, 244 [2d Dept 2007]; HSBC Bank USA v. Dammond, 59 A.D.3d 679, 680 [2d Dept 2009]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625[2d Dept 2009] ), those cases are distinguishable from the present matter. In both Wells Fargo V. Mastropaolo and Countrywide v. Delphonse, the defendant filed answers containing either counterclaims or affirmative defenses without asserting a standing defense (see Mastropaolo, 42 AD3d at 240; Delphonse 64 AD3d at 625). In so doing, those defendants tacitly acknowledged that the plaintiff was a proper party for the prosecution of those foreclosure actions. In the present action, defendant has not appeared or filed an answer and has therefore not waived the right to challenge plaintiff’s standing. Particularly significant is the observation in Dammond that it was that the respondent was personally served” and the defendant did not raise the standing defense until “immediately prior to the date scheduled for the sale of the property” (Dammond, 59 AD3d at 680). In the present action, the defendant has not been personally served and, as discussed supra, it is unlikely the defendant even had notice of this foreclosure action as the plaintiff did not serve the summons, complaint, or the present motion on the defendant …” (emphasis added).
3. Therefore, based on recent caselaw, serious jurisdictional objections to the Plaintiff’s standing are not waived and need to be considered by this Court where the Foreclosure Long Island defendant has not appeared and disputes service.