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DEFENDANT NEVER CONSENTED TO THE SUBSTITUTION OF COUNSEL IN THIS FORECLOSURE ACTION; THE MOTION FOR SUMMARY JUDGMENT, SERVED ON THE PURPORTED SUBSTITUTE COUNSEL, WAS NEVER SERVED UPON DEFENDANT AND WAS THEREFORE NULLIFIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determine the plaintiff’s motion for a default judgment in this foreclosure action was not properly served and therefore must be reversed. The papers were served on an attorney but defendant had not consented to the substitution of thst attorney:

… [T]he record demonstrates that the plaintiff served its motion, inter alia, for an order of reference and its motion for a judgment of foreclosure and sale, on [attorney] Elo, not [defendant] Nakash or CAMBA [legal services]. Nakash retained CAMBA in July 2011 to appear on her behalf at the settlement conferences. Although in April 2013, CAMBA and Elo signed a substitution of counsel, Nakash never acknowledged or signed this substitution, nor was a substitution ordered by the Supreme Court. Moreover, Nakash attested that she did not know Elo, never authorized him to represent her, and never received the plaintiff’s motion papers or any orders from the court. Since the substitution was improper under CPLR 321(b), CAMBA, not Elo, was Nakash’s attorney of record when the plaintiff made its motions, and thus, the plaintiff failed to properly serve Nakash with these motions, depriving the Supreme Court of jurisdiction to entertain these motions and rendering so much of the resulting order dated March 17, 2014, and the order and judgment of foreclosure and sale as are in favor of the plaintiff and against Nakash nullities that must be vacated … . U.S. Bank N.A. v Nakash, 2021 NY Slip Op 03479, Second Dept 6-2-21

 

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