State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522612 

________________________________

HSBC MORTGAGE CORPORATION 

(USA),

Respondent,

v

BARBARA JOHNSTON, Also Known MEMORANDUM AND ORDER

as BARBARA A. JOHNSTON,

Appellant,

et al.,

Defendant.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Law Offices of James W. Hyde IV, Wells (James W. Hyde IV of

counsel), for appellant.

Rosicki, Rosicki & Associates, PC, Plainview (David Mushett

of counsel), for respondent.

__________

Aarons, J.

Appeal from an order of the Supreme Court (Pritzker, J.),

entered April 14, 2015 in Washington County, which denied

defendant Barbara Johnston's motion to, among other things, renew

and reargue a prior order.

After defendant Barbara Johnston (hereinafter defendant)

failed to make payments due under her loan, plaintiff commenced

this foreclosure action. Supreme Court subsequently granted

plaintiff's motion for summary judgment and, in 2010, Supreme

Court granted plaintiff a judgment of foreclosure and sale. In
-2- 522612 

2011, defendant moved to vacate the judgment of foreclosure and

sale arguing, among other things, that plaintiff lacked standing

to commence this action. Supreme Court, in an order entered on

February 4, 2014, denied defendant's motion finding that

defendant waived the affirmative defense of lack of standing. 

Defendant thereafter moved for, among other things, renewal and

reargument of the February 4, 2014 order. Supreme Court, in an

order entered on April 14, 2015, denied said motion, prompting

this appeal by defendant. We affirm.

Initially, because Supreme Court addressed the merits of

that part of defendant's motion seeking reargument, we view the

April 14, 2015 order on this point as granting reargument and

adhering to its prior decision. As such, contrary to plaintiff's

argument, defendant may appeal from the denial of that part of

her motion seeking reargument (see CPLR 5701 [a] [2] [viii];

Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184-1185

[2015], lv denied 25 NY3d 912 [2015]; Grasso v Schenectady County

Pub. Lib., 30 AD3d 814, 816 n 1 [2006]).

We nevertheless conclude that Supreme Court properly

adhered to its original decision upon reargument inasmuch as

defendant failed to demonstrate that Supreme Court overlooked or

misapprehended any fact or law in finding that defendant waived

the affirmative defense of lack of standing (see CPLR 2221 [d]

[2]). Contrary to defendant's assertion, the failure to raise

lack of standing as an affirmative defense in an answer or in a

pre-answer motion to dismiss constitutes a waiver of such

affirmative defense (see Nationstar Mtge., LLC v Alling, 141 AD3d

916, 917 [2016]; CNB Realty v Stone Cast, Inc., 127 AD3d 1438,

1439 [2015]; HSBC Bank USA N.A. v Pacyna, 112 AD3d 1246, 1247

[2013]). Furthermore, even affording a liberal pleading standard

to defendant, who was pro se when she interposed her answer, we

conclude that the statements in her answer – a request that

plaintiff produce the original note to determine whether it had

been altered or the allegation that plaintiff improperly

converted the mortgage into an asset – did not sufficiently

apprise plaintiff that defendant was challenging plaintiff's

standing to bring this foreclosure action (see CPLR 3018 [b]). 

Accordingly, we find no error in Supreme Court's denial of

defendant's motion to the extent that it sought reargument.
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We also conclude that Supreme Court properly denied that

aspect of defendant's motion seeking renewal. In support of

renewal, defendant submitted a partial copy of her credit history

report from 2013 as a means to challenge plaintiff's standing. 

This proof, however, would not change the prior determination

that defendant waived the standing defense and, thus, Supreme

Court properly denied that aspect of defendant's motion seeking

renewal (see Matter of Barnes v Venettozzi, 135 AD3d 1250, 1251

[2016]). 

Peters, P.J., Lynch, Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court