Scott Mollen

Foreclosures—Defendants Failed To Raise Standing in Their Answers or in Pre-Answer Motions as Required by CPLR 3211(e) Under Then Applicable Law—the Defense Was Waived—Court Did Not Reach the Issue of Whether RPAPL 1302-a, Enacted While Appeal Was Pending, Allows Defendants To Raise Standing at This Stage of the Litigation

The New York Court of Appeals (court) addressed plaintiff's motions for summary judgment and for a judgment of foreclosure and sale. A trial court granted the plaintiff's motions. The defendants had failed to raise standing in their answers or in pre-answer motions as required by CPLR 3211(e). Based on the law then in effect at the time of the orders appealed from, the court held that the defense "was waived."

The defendants argued that "ownership is an essential element of a foreclosure action." They raised that argument "for the first time in support of their motion for reargument at the Appellate Division." The court concluded that the argument was "unpreserved for our review." The court did not "reach the issue of whether RPAPL 1302-a, enacted while this appeal was pending, affords defendants an opportunity to raise standing at this stage of the litigation." The court stated that the defendants were "free to apply to the trial court for any relief that may be available to them under that statute."

A concurring opinion (opinion) stated that the subject dispute, "which has roiled the lower courts, arises from a simple misnomer. Whether a plaintiff is a party to a contract—and therefore can sue for breach of contract—is not a question of 'standing.' New York law suggests that true standing must be pleaded as an affirmative defense. But whether a plaintiff is a party to a contract and, therefore, can sue for breach, is not a question of standing—it is an essential element of a plaintiff's claim, which must be pleaded affirmatively in a complaint."