By Nelson, J.P.; Dowling, Warhit, Love, JJ.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. TINY O’CONNOR, app, ET AL., def — (Index No. 504304/15) Tiny O’Connor, Brooklyn, NY, appellant pro se. Greenberg Traurig, LLP, New York, NY (Sarah D. Lemon and Patrick G. Broderick of counsel), for respondent. In an action to foreclose a mortgage, the defendant Tiny O’Connor appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Noach Dear, J.), dated May 8, 2019. The judgment of foreclosure and sale, upon (1) an order of the same court dated November 21, 2017, inter alia, denying that defendant’s motion to dismiss the complaint insofar as asserted against her, granting that branch of the plaintiff’s cross-motion which was for an order of reference, and, in effect, sua sponte, directing entry of a default judgment against that defendant, (2) an order of the same court also dated November 21, 2017, referring the matter to a referee to ascertain and compute the amount due to the plaintiff, (3) an order of the same court dated December 5, 2018, denying that defendant’s motion, inter alia, pursuant to CPLR 5015(a) to vacate so much of the first order dated November 21, 2017, as granted that branch of the plaintiff’s cross-motion which was for an order of reference and, in effect, sua sponte, directed entry of a default judgment against that defendant, pursuant to CPLR 5015(a) to vacate that defendant’s default in appearing or answering the complaint, and to dismiss the complaint insofar as asserted against that defendant, or, alternatively, pursuant to CPLR 3012(d) for leave to file a late answer, and (4) an order of the same court dated May 8, 2019, granting the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale and denying the cross-motion of that defendant, inter alia, to dismiss the complaint insofar as asserted against her, confirmed the referee’s report and directed the sale of the subject property. ORDERED that the judgment of foreclosure and sale is reversed, on the law, with costs, the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale is denied, that branch of the motion of the defendant Tiny O’Connor which was pursuant to CPLR 5015(a) to vacate so much of the first order dated November 21, 2017, as granted that branch of the plaintiff’s cross-motion which was for an order of reference and, in effect, sua sponte, directed entry of a default judgment against that defendant is granted, the first order dated November 21, 2017, and the orders dated December 5, 2018, and May 8, 2019, are modified accordingly, and the second order dated November 21, 2017, is vacated. In April 2006, the defendant Tiny O’Connor (hereinafter the defendant) executed a note in the sum of $380,000 in favor of Berkshire Financial Group, Inc. The note was secured by a mortgage on certain residential property located in Brooklyn. In August 2010, the plaintiff commenced an action against the defendant, among others, to foreclose the mortgage. In June 2013, the Supreme Court dismissed the action as abandoned pursuant to CPLR 3215(c). In April 2015, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant failed to timely appear or answer the complaint. By order dated December 1, 2015, the action was released from the residential foreclosure settlement part (hereinafter the settlement part). In October 2016, the plaintiff commenced a related action against the defendant pursuant to RPAPL article 15 (hereinafter the 2016 action) to correct an assignment of mortgage to reflect that only the defendant executed the mortgage. By order dated September 14, 2017, the Supreme Court directed dismissal of the 2016 action without prejudice. In March 2017, in this action, the defendant, who was pro se, moved pursuant to CPLR 213(4), 3211(a), 3215(c), and, in effect, 3012-b to dismiss the complaint insofar as asserted against her, inter alia, for lack of standing, as abandoned, and as time-barred. The plaintiff cross-moved, among other things, for summary judgment on the complaint and for an order of reference. The plaintiff did not seek leave to enter a default judgment against the defendant. In an order dated November 21, 2017, the Supreme Court, inter alia, denied the defendant’s motion, granted that branch of the plaintiff’s cross-motion which was for an order of reference, and, in effect, sua sponte, directed entry of a default judgment against the defendant. In a second order also dated November 21, 2017, the court referred the matter to a referee to ascertain and compute the amount due to the plaintiff. In April 2018, the defendant, now represented by counsel, moved, inter alia, pursuant to CPLR 5015(a) to vacate so much of the first order dated November 21, 2017, as granted that branch of the plaintiff’s cross-motion which was for an order of reference and, in effect, sua sponte, directed entry of a default judgment against her, pursuant to CPLR 5015(a) to vacate her default in appearing or answering the complaint, and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, lack of standing, and on the ground that the action was time-barred, or, alternatively, pursuant to CPLR 3012(d) for leave to file a late answer. The plaintiff failed to oppose the motion. In an order dated December 5, 2018, the Supreme Court denied the motion. In January 2019, the plaintiff moved to confirm the referee’s report and for a judgment of foreclosure and sale. The defendant cross-moved, inter alia, to dismiss the complaint insofar as asserted against her. By order dated May 8, 2019, the Supreme Court granted the plaintiff’s motion and denied the defendant’s cross-motion. In a judgment of foreclosure and sale also dated May 8, 2019, the court confirmed the referee’s report and directed the sale of the subject property. The defendant appeals.
