The following named papers numbered 1 to 2

submitted on this Motion

on March 11, 2011

papers numbered

Notice of Motion and Supporting DocumentsOrder to Show Cause and Supporting Documents1

Opposition to Motion2

Reply Papers to Motion

Respondent moved by order to show cause, dated February 22, 2011, to vacate the judgment of possession and warrant of eviction. Petitioner-Owner DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FFH4 ASSET-BACKED CERTIFICATES, SERIES 2004-FFH4 commenced this holdover proceeding requesting final judgment awarding possession of 5 Moore Circle, Freeport, NY, and the issuance of a warrant to remove the respondent Linda Forrest from possession thereof. [*2]

On March 2, 2010, the entire premises, pursuant to a Judgment of Foreclosure and Sale, was sold at public auction to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FFH4 ASSET-BACKED CERTIFICATES, SERIES 2004-FFH4, the Petitioner-Owner herein. Subsequently, Respondent-Occupant was served with a Ten Day Notice to Vacate with Alternative Ninety Day Notice, dated March 19, 2010.

On September 7, 2010, the parties signed a stipulation of settlement wherein Respondent consented to a final judgment of possession in favor of the Owner and warrant of eviction stayed until December 7, 2010. Respondent further, in the Stipulation of Settlement, "acknowledge this Court's authority (personal and subject matter jurisdiction and venue)," and also that "they have no unexpired occupancy rights under State or Federal laws protecting tenants in foreclosed properties."

On February 16, 2011, a Notice to Vacate (72 Hour Notification) was given to Respondent-Occupants by the Nassau County Sheriff. On February 22, 2011, Respondent-Occupants submitted to the court an order to show cause to set aside the judgment of possession of the warrant of eviction on the basis that the mortgage agreement that was the subject of the foreclosure action was defective and the foreclosing plaintiff lacked standing.

It is well established that when a defendant fails to timely raise a challenge to a plaintiff's standing, that defendant waives the claim that plaintiff is not a proper party. (See HSBC BANK, USA v. Dammond, 59 AD3d 679 [2nd Dep't 2009]; Aames Funding Corp. v. Houston, 57 AD3d 808 [2nd Dep't 2008]; Fossella v. Dinkins, 66 NY2d 162 [1985]; Wells Fargo v. Mastrapaolo, 42 AD3d 239 [2nd Dep't 2007]).

Plaintiff-Owner previously established standing by submitting evidentiary proof to the Supreme Court's satisfaction that it had a right to foreclose. The Judgment of Foreclosure and Sale was entered in the Office of the Clerk of Nassau County on January 16, 2009. Respondent-Occupant tried in the Supreme Court and Appellate Division to get the referees deed vacated, but was not successful. A judgment of foreclosure and ensuing sale is final as to all issues between the parties and all matters of defense that could have been litigated. (See Gray v. Bankers Trust Co. of Albany, 82 AD2d 168 [3rd Dep't 1981]). A judgment of foreclosure is conclusive as to any matters actually litigated or might have been litigated. (See 119 Rosset Corp. v. Blimpy [*3]of NY Corp., 65 AD2d 683 [1st Dep't 1981]; Schuylkill Fuel Corp. v. B & C Nieberg Realty Corp., 250 NY 304 [1929]).

Respondent-Occupant, in the stipulation, agreed to vacate the premises on or before December 7, 2010 and failed to do so. A party who signs a stipulation will ordinarily be bound by its terms absent a showing of good cause such as fraud, collusion, mistake, accident or some other wrongful act. (See In re Frutiger's Estate, 29 NY2d 143 [1971]). The Respondent-Occupant failed to set forth any good cause which would require the court to nullify the stipulation.

Respondent-Occupant's Order to Show Cause is denied. Petitioner may proceed to evict Respondent forthwith.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:March 30, 2011