Security Pacific National Trust (New York), Respondent, v. Mootoo S. Chunassamy, Appellant

Security Pacific National Trust (New York), Respondent, v Mootoo S. Chunassamy, Appellant. [734 NYS2d 438] [MAJORITY] Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 18, 2000, which, in a mortgage foreclosure action, granted defendant-appellant’s motion to vacate a judgment of foreclosure and sale entered against him on default and to dismiss the complaint as against him for lack of jurisdiction only to the extent of vacating the default judgment, unanimously modified, on the law, to dismiss the complaint as against appellant, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered August 24, 2000, which denied appellant’s motion to dismiss the complaint as against him for lack of jurisdiction, unanimously dismissed, without costs, as academic in view of the foregoing. The motion court’s unchallenged finding that plaintiff failed to make proper service upon appellant requires dismissal of the action as against appellant (CPLR 5015 [a] [4]; see, McMullen v Arnone, 79 AD2d 496, 499; Boorman v Deutsch, 152 AD2d 48, 51-52, lv dismissed 76 NY2d 889). Plaintiff’s arguments are improperly raised for the first time on appeal, and we decline to consider them. Concur — Rosenberger, J. P., Tom, Andrias, Ellerin and Wallach, JJ.