You are here: / / BY ENTERING A STIPULATION SETTLING A FORECLOSURE ACTION, DEFENDANT WAIVED...
,

BY ENTERING A STIPULATION SETTLING A FORECLOSURE ACTION, DEFENDANT WAIVED ANY DEFECT IN SERVICE OF THE COMPLAINT, THE STIPULATION WAS VALID EVEN THOUGH IT DID NOT OCCUR IN COURT, EMAILS AND PAYMENT OF A SETTLEMENT AMOUNT MEMORIALIZED THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that defendant Campbell had waived any defect in service of process by entering into a stipulation of settlement in this foreclosure action. The court held that the stipulation settling the deficiency judgment, which did not occur in court, was memorialized by emails and the payment of an agreed settlement amount. The dissent argued there was insufficient evidence of a stipulation entered into by Campbell and therefore Campbell’s motion to vacate the default judgment on the ground she was never served with the complaint should have been granted:

… [I]n vacating the settlement of the deficiency judgment “in the interests of justice,” the Supreme Court incorrectly determined that Campbell was not represented by counsel. In fact, Campbell was represented by counsel when she settled and made payment on the deficiency judgment. As part of the settlement, the plaintiff agreed not to proceed in other pending foreclosure actions against Campbell. Additionally, Campbell retained the same attorney with respect to other actions arising out of the settlement. By settling the deficiency judgment, Campbell clearly submitted to the court’s jurisdiction and acknowledged the validity of the judgment… . Therefore, we disagree with the court’s determination granting Campbell’s motion to vacate the judgment of foreclosure and sale, the subsequent foreclosure sale, the order of reference, the referee’s deed, and the settlement of the deficiency judgment, the terms of which had been fully performed.

Contrary to the position of our dissenting colleague, a formal stipulation of settlement need not be contained in the record. Here, the terms of the settlement were contained in contemporaneous emails between the plaintiff’s attorney and Campbell’s attorney, and by a check in the amount on which they had agreed. Campbell does not deny that she paid the amount for which she agreed to settle the deficiency judgment. That fully performed settlement two years before Campbell moved to vacate her default effectively waived her defense that the court lacked personal jurisdiction over her … . Eastern Sav. Bank, FSB v Campbell, 2018 NY Slip Op 08465, Second Dept 12-12-18

CPLR 2104

You might also like
Acknowledgment of Paternity by Mother’s Husband Did Not Preclude Biological Father’s Petition to Be Declared the Father of the Child
Question of Fact About Whether the Three-Year Statute of Limitations for Professional Malpractice Was Tolled by the “Continuous Representation” Doctrine
SCHOOL OWED NO DUTY OF CARE TO STUDENT STRUCK BY A CAR AFTER LEAVING THE SCHOOL WITH PERMISSION.
CONCLUSORY AND SPECULATIVE ALLEGATIONS WILL NOT SUPPORT PIERCING THE CORPORATE VEIL (SECOND DEPT).
COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT.
ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).
PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).
THE BANK DID NOT PRESENT EVIDENCE THE CREDIT CARD BILLING STATEMENTS AND THE AMENDMENTS TO THE CREDIT CARD AGREEMENT WERE MAILED TO THE DEFENDANT; THE BANK’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT AND ACCOUNT STATED CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT WITH RESPECT TO THE ADVERSE POSSESSION... REMARKS ALLEGED TO BE DEFAMATORY REFLECTED THE RESULTS OF A JUDICIAL PROCEEDING...