                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   522612
________________________________

HSBC MORTGAGE CORPORATION
   (USA),
                    Respondent,
      v

BARBARA JOHNSTON, Also Known                MEMORANDUM AND ORDER
   as BARBARA A. JOHNSTON,
                    Appellant,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   October 11, 2016

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                             __________


      Law Offices of James W. Hyde IV, Wells (James W. Hyde IV of
counsel), for appellant.

      Rosicki, Rosicki & Associates, PC, Plainview (David Mushett
of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from an order of the Supreme Court (Pritzker, J.),
entered April 14, 2015 in Washington County, which denied
defendant Barbara Johnston's motion to, among other things, renew
and reargue a prior order.

      After defendant Barbara Johnston (hereinafter defendant)
failed to make payments due under her loan, plaintiff commenced
this foreclosure action. Supreme Court subsequently granted
plaintiff's motion for summary judgment and, in 2010, Supreme
Court granted plaintiff a judgment of foreclosure and sale. In
                              -2-                522612

2011, defendant moved to vacate the judgment of foreclosure and
sale arguing, among other things, that plaintiff lacked standing
to commence this action. Supreme Court, in an order entered on
February 4, 2014, denied defendant's motion finding that
defendant waived the affirmative defense of lack of standing.
Defendant thereafter moved for, among other things, renewal and
reargument of the February 4, 2014 order. Supreme Court, in an
order entered on April 14, 2015, denied said motion, prompting
this appeal by defendant. We affirm.

      Initially, because Supreme Court addressed the merits of
that part of defendant's motion seeking reargument, we view the
April 14, 2015 order on this point as granting reargument and
adhering to its prior decision. As such, contrary to plaintiff's
argument, defendant may appeal from the denial of that part of
her motion seeking reargument (see CPLR 5701 [a] [2] [viii];
Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184-1185
[2015], lv denied 25 NY3d 912 [2015]; Grasso v Schenectady County
Pub. Lib., 30 AD3d 814, 816 n 1 [2006]).

      We nevertheless conclude that Supreme Court properly
adhered to its original decision upon reargument inasmuch as
defendant failed to demonstrate that Supreme Court overlooked or
misapprehended any fact or law in finding that defendant waived
the affirmative defense of lack of standing (see CPLR 2221 [d]
[2]). Contrary to defendant's assertion, the failure to raise
lack of standing as an affirmative defense in an answer or in a
pre-answer motion to dismiss constitutes a waiver of such
affirmative defense (see Nationstar Mtge., LLC v Alling, 141 AD3d
916, 917 [2016]; CNB Realty v Stone Cast, Inc., 127 AD3d 1438,
1439 [2015]; HSBC Bank USA N.A. v Pacyna, 112 AD3d 1246, 1247
[2013]). Furthermore, even affording a liberal pleading standard
to defendant, who was pro se when she interposed her answer, we
conclude that the statements in her answer – a request that
plaintiff produce the original note to determine whether it had
been altered or the allegation that plaintiff improperly
converted the mortgage into an asset – did not sufficiently
apprise plaintiff that defendant was challenging plaintiff's
standing to bring this foreclosure action (see CPLR 3018 [b]).
Accordingly, we find no error in Supreme Court's denial of
defendant's motion to the extent that it sought reargument.
                              -3-                  522612

      We also conclude that Supreme Court properly denied that
aspect of defendant's motion seeking renewal. In support of
renewal, defendant submitted a partial copy of her credit history
report from 2013 as a means to challenge plaintiff's standing.
This proof, however, would not change the prior determination
that defendant waived the standing defense and, thus, Supreme
Court properly denied that aspect of defendant's motion seeking
renewal (see Matter of Barnes v Venettozzi, 135 AD3d 1250, 1251
[2016]).

     Peters, P.J., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
