Opinion
2017–01179 Index No. 712672/15
07-17-2019
BANK OF NEW YORK MELLON, etc., Respondent, v. Tahany FARAGALLA, et al., Appellants, et al., Defendants.
Druckman Law Group PLLC, Westbury, N.Y. (Stuart L. Druckman of counsel), for respondent. Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for appellants.
Druckman Law Group PLLC, Westbury, N.Y. (Stuart L. Druckman of counsel), for respondent.
Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel), for appellants.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the motion of the defendants Tahany Faragalla and Mounir Hanna which was pursuant to CPLR 2005 and 5015(a) to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against them is granted.
The plaintiff commenced this action to foreclose a mortgage on real property owned by the defendants Tahany Faragalla and Mounir Hanna (hereinafter together the appellants). On or about April 14, 2016, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellants. The appellants did not submit opposition papers or appear on the return date of the motion to request an adjournment. Subsequently, the appellants moved, among other things, pursuant to CPLR 2005 and 5015(a) to vacate their default in opposing the plaintiff's motion. In the order appealed from, the Supreme Court, inter alia, denied that branch of the appellants' motion which was to vacate their default.
A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1] ; OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 715–716, 59 N.Y.S.3d 480 ; Flagstar Bank, FSB v. Damaro, 145 A.D.3d 858, 859–860, 44 N.Y.S.3d 128 ; Bayview Loan Servicing, LLC v. Martano, 131 A.D.3d 1187, 1189, 18 N.Y.S.3d 71 ; GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83 ).
"A motion to vacate a default is addressed to the sound discretion of the motion court" ( Aurora Loan Servs., LLC v. Ahmed, 122 A.D.3d 557, 557–558, 996 N.Y.S.2d 92 [internal quotation marks omitted]; see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631 ; Forward Door of N.Y., Inc. v. Forlader, 41 A.D.3d 535, 836 N.Y.S.2d 440 ). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" ( Citicorp Trust Bank, FSB v. Makkas, 127 A.D.3d 907, 908, 7 N.Y.S.3d 379 ; see Lyubomirsky v. Lubov Arulin, PLLC, 125 A.D.3d 614, 3 N.Y.S.3d 377 ; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ).
Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff's motion based on evidence of law office failure. In an affirmation, the appellants' attorney explained that upon receiving the plaintiff's motion, he directed his office's legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Thus, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants' motion which was to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment (see Flagstar Bank, FSB v. Damaro, 145 A.D.3d at 859–860, 44 N.Y.S.3d 128 ; U.S. Bank, N.A. v. Bukobza, 142 A.D.3d 1070, 1071, 39 N.Y.S.3d 171 ; Bank of N.Y. v. Segui, 120 A.D.3d 1369, 1373–1374, 993 N.Y.S.2d 330 ; see also CPLR 2005 ; Bayview Loan Servicing, LLC v. Martano, 131 A.D.3d 1187, 1189, 18 N.Y.S.3d 71 ).
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.