| HSBC Bank USA, N.A. v Nelson |
| 2021 NY Slip Op 02789 [194 AD3d 700] |
| May 5, 2021 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| HSBC Bank USA, National Association,
Respondent, v Fabienne Nelson, Appellant, et al., Defendants. |
Fabienne Nelson, Brooklyn, NY, appellant pro se.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Megan K. McNamara and Rajdai Singh of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Fabienne Nelson appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Noach Dear, J.), dated July 3, 2017. The order and judgment of foreclosure and sale, upon an order of the same court (Loren Baily-Schiffman, J.) dated October 26, 2016, inter alia, granting the plaintiff's motion for leave to enter a default judgment and for an order of reference, among other things, confirmed the referee's report and directed the sale of the subject property.
Ordered that the order and judgment of foreclosure and sale is affirmed, with costs.
In 2013, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Fabienne Nelson. Nelson did not answer the complaint. In May 2015, the plaintiff moved for leave to enter a default judgment and for an order of reference. Nelson opposed the motion, arguing that the plaintiff failed to establish standing or compliance with conditions precedent to commencing the action. Nelson did not address his default. In an order dated October 26, 2016, the Supreme Court, inter alia, granted the plaintiff's motion.
In January 2017, the plaintiff moved for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale dated July 3, 2017, the Supreme Court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. Nelson appeals.
Since the default has not been vacated, Nelson cannot raise the issues of lack of standing and failure to comply with conditions precedent (see US Bank N.A. v Dorestant, 131 AD3d 467, 469-470 [2015]; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 813 [2015]).
Contrary to Nelson's contention, the Supreme Court properly confirmed the referee's report (see generally Adelman v Fremd, 234 AD2d 488, 489 [1996]).
Nelson's remaining contentions are either precluded by his failure to vacate his [*2]default (see US Bank N.A. v Dorestant, 131 AD3d at 469-470) or without merit.
Accordingly, we affirm the order and judgment of foreclosure and sale. Chambers, J.P., Austin, Brathwaite Nelson and Iannacci, JJ., concur.