Bank United, FSB v Verbitsky, 2018 NY Slip Op 08623 [2d Dept. 2018]
As a threshold matter, the defendant correctly contends that the Supreme Court should have granted those branches of her motion which were to vacate and set aside the foreclosure sale and, in effect, to vacate the judgment of foreclosure and sale and the order of reference. “[A] court is without power to render a judgment against a party over whom the court lacks jurisdiction. A judgment rendered without jurisdiction is void” (Berlin v Sordillo, 179 AD2d 717, 719; see Diaz v Perez, 113 AD3d 421, 421; U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872). Accordingly, upon, in effect, confirming the referee’s finding that the defendant was not properly served, the court was required to vacate and set aside the foreclosure sale, as well as the judgment of foreclosure and sale and order of reference upon which it was based (see Prudence v Wright, 94 AD3d 1073, 1074; U.S. Bank, N.A. v Bernhardt, 88 AD3d at 872).
However, in light of the plaintiff’s timely cross motion pursuant to CPLR 306-b (see US Bank N.A. v Saintus, 153 AD3d 1380, 1382), the Supreme Court could consider whether to extend the time for service of process, rather than granting the branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.
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