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CITIBANK, N.A., Respondent, v. ELVIS HERRERA, Appellant, et al., Defendants.

Ordered that the order is affirmed, with costs.

On appeal, the defendant Elvis Herrera challenges only the plaintiff's standing to commence this action, not the merits of the plaintiff's motion. However, Herrera waived any challenge to the plaintiff's standing by raising this argument for the first time only in opposition to the plaintiff's summary judgment motion, and not in his answer or in a pre-answer motion to dismiss ( see CPLR 3211 [a] [3]; [e]; Matter of Fossella v Dinkins, 66 NY2d 162, 167-168; Dougherty v City of Rye, 63 NY2d 989, 991-992; HSBC Bank, USA v Dammond, 59 AD3d 679; Aames Funding Corp. v Houston, 57 AD3d 808; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).

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CITIBANK v. HERRERA
(Jul 7, 2009)