Bank of Am., N.A. v Diaz, 2018 NY Slip Op 02421 [1st Dept 2018]
As an initial matter, plaintiff asserts that defendant's motion was procedurally improper, in that he did not specify the CPLR provision under which his cross motion was made. Although defendant did not cite a specific section of the CPLR, it is abundantly clear, from his affirmation in support of his cross motion to dismiss and opposition to judgment of foreclosure and sale, that he is asserting that plaintiff failed to obtain jurisdiction over him as the grounds for dismissal. It is clear from the content of the motion papers that defendant intended to make his motion under CPLR 5015(a)(4) (cf. Caba v Rai, 63 AD3d 578 [1st Dept 2009], finding that defendant was not entitled to relief under CPLR 5015(a)(4) because "[n]owhere in her motion papers, however, did defendant suggest that the action should be dismissed because the court lacked personal jurisdiction…").
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