Upon the E-file document list numbered 25 to 43 read and considered on the motion filed by IPA Asset Management, LLC, alleged successor in interest to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust, for an order dismissing this action pursuant to CPLR 3215 (c); it is

ORDERED that the motion by IPA Asset Management, LLC, alleged successor in interest to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust, for an order dismissing this action pursuant to CPLR 3215 (c), is denied, for the reasons set forth herein.

This is an action to foreclose a mortgage on real property located in Smithtown, New York. The original and only borrower on the mortgage and note was Luis A. Palma, who passed away. Prior to his passing, on July 29, 2008, Luis A. Palma transferred his entire interest in the subject premises to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust (the "Palma defendants"). As a result of the passing of Luis A. Palma, the heirs and beneficiaries of Luis A. Palma, became the necessary parties to this action by virtue of their ownership interest in the subject property, including defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust ^[FN1] . In 2015, Tatiana Palma passed away. By deed dated May 3, 2016, defendant Hidden Ponds Home Owners Association (the "HOA") became the owner of the premises by virtue of a deed from Howard E. Knispel, Esq., the Court appointed referee in the foreclosure action commenced by defendant HOA. By deed dated May 16, 2017, defendant HOA transferred its interest to the movant, IPA Asset Management, LLC ("IPA"). IPA claims that it is the successor in interest to the Palma defendants and moves herein to dismiss this action pursuant to CPLR 3215 (c) due to plaintiff's failure to timely move for a default judgment against the Palma defendants. Inasmuch as Tatiana Palma passed away in 2015, her interest in the subject property terminated upon her passing and IPA cannot be said to be a successor of any interest she may have had prior to her passing. As to Alan Palma, the remaining Trustee of the Tatiana Trust, his interest in the subject property terminated when the referee's deed dated May 3, 2016 was tendered to defendant HOA. In this regard, the referee's deed specifically grants and conveys to defendant HOA, all the right, title and interest of the Palma defendants in the subject premises. Since May 3, 2016, as plaintiff argues, the Palma defendants held no interest in the subject property, and therefore, are no longer necessary parties to this foreclosure action (see generally U.S. Bank N.A. v Gonzalez, 172 AD3d 1273, 101 NYS3d 363 [2d Dept 2019] citing RPAPL 1311). Further, according to the deeds to the subject property, IPA did not possess its interest until 2017, a year after defendant HOA acquired its interest. As such, the intervening title interest held by defendant HOA renders without merit the claim by IPA that it is the [*2]successor in interest to the Palma defendants.

Moreover, defendant HOA filed a notice of appearance in this foreclosure action. Where a defendant makes a formal or informal appearance, the defendant has waived the ability to move to dismiss pursuant to CPLR 3215(c) (see DeLourdes Torres v Jones, 26 NY3d 742, 27 NYS3d 468 [2016]; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016]; Myers v Slutsky, 139 AD2d 709, 527 NYS2d 464 [2d Dept 1988]). Here, defendant HOA waived its right to move under CPLR 3215(c) by virtue of the notice of appearance filed by its counsel (see Bank of Am., N.A. v Lichter, 192 AD3d 957, 140 NYS3d 775 [2d Dept 2021; Bank of Am., N.A. v Rice, 155 AD3d 593, 63 NYS3d 486 [2d Dept 2017]; Bank of NY Mellon v Walker, 2019 NY Slip Op 30073(U) [Sup. Ct., Suffolk County 2019]). As a result, IPA, who "stands in the shoes" of its predecessor in interest, defendant HOA, (see generally PennyMac Corp. v Dean-Phillips,189 AD3d 1603, 139 NYS3d 335 [2d Dept 2020]; Goldstein v Gold, 106 AD2d 100, 102, 483 NYS2d 375 [2d Dept 1984] aff'd 66 NY2d 624 [1985]; see also Citimortgage v Etienne, 172 AD3d 808, 101 NYS3d 59 [2d Dept 2019]; Stout St. Fund I, L.P. v Halifax Group, 148 AD3d 744, 48 NYS3d 438 [2d Dept 2017]; Bello v Losner,132 AD3d 794, 17 NYS3d 877 [2d Dept 2015]; Bank of New York v Stauble, 84 AD2d 530, 443 NYS2d 88 [2d Dept 1981]; JP Morgan Chase Bank, N.A. v White,182 AD3d 469, 122 NYS3d 296 [1st Dept 2020]; Deutsche Bank Natl. Trust Co. v Tanibajeva,132 AD3d 430, 17 NYS3d 399 [1st Dept 2015]), can only assert herein those viable arguments that could be maintained by defendant HOA. Because defendant HOA waived its rights under CPLR 3215 (c), IPA has no basis to seek any relief under CPLR 3215 (c). The Court has considered the remaining arguments of IPA and finds that they lack merit.^[FN2]

Accordingly, the motion by IPA Asset Management, LLC to dismiss the complaint pursuant to CPLR 3215 (c) is denied. Counsel for IPA Asset Management, LLC is cautioned that the Court will entertain an application by plaintiff for an award of sanctions should any future motion made by this non-party be deemed frivolous under 22 NYCRR 130-1.1.

The foregoing constitutes the decision and Order of the Court.