Opinion
2016–05826 2017–01997 Index No. 16454/08
05-01-2019
BANK OF NEW YORK, etc., Respondent, v. Ofer ATTIA, et al., Appellants, et al., Defendants.
Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Stuart S. Zisholtz of counsel), for appellants. Akerman LLP, New York, N.Y. (Jordan M. Smith and Ashley S. Miller of counsel), for respondent.
Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Stuart S. Zisholtz of counsel), for appellants.
Akerman LLP, New York, N.Y. (Jordan M. Smith and Ashley S. Miller of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J. RUTH C. BALKIN SYLVIA O. HINDS–RADIX LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
In July 2008, the plaintiff commenced this action against Ofer Attia and Michal Attia (hereinafter together the defendants) to foreclose a mortgage. The defendants interposed a pro se answer dated August 12, 2008, and an undated "modified answer" filed on November 5, 2008. The plaintiff moved, inter alia, for summary judgment on the complaint. The defendants did not oppose the motion. By order dated May 22, 2009, the Supreme Court, among other things, granted the plaintiff's motion, struck the defendants' answer and modified answer, directed that the answer and modified answer be treated as a limited notice of appearance, and referred the matter to a referee. Thereafter, on September 9, 2009, the court entered a judgment of foreclosure and sale.
Approximately six years later, in September 2015, the defendants moved, inter alia, to vacate and set aside the judgment of foreclosure and sale and a foreclosure sale held on August 12, 2015. By order entered April 1, 2016, the Supreme Court, among other things, denied those branches of the motion. The defendants moved for leave to renew those branches of the motion, and to dismiss the action insofar as asserted against them. By order entered January 24, 2017, the court, inter alia, denied those branches of the motion. The defendants appeal.
We agree with the Supreme Court's determination to deny those branches of the defendants' motion which were to vacate and set aside the judgment of foreclosure and sale and a foreclosure sale held on August 12, 2015. A party seeking to vacate an order entered upon its default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Wells Fargo Bank, N.A. v. Syed , 160 A.D.3d 914, 915, 76 N.Y.S.3d 63 ; Hamilton v. Adriatic Dev. Corp. , 150 A.D.3d 835, 835, 55 N.Y.S.3d 106 ). The defendants failed to submit a reasonable excuse for their default in opposing the plaintiff's summary judgment motion, as they offered no excuse for that failure (see Wells Fargo Bank v. Syed , 160 A.D.3d at 915, 76 N.Y.S.3d 63 ; Hamilton v. Adriatic Dev. Corp. , 150 A.D.3d at 835–836, 55 N.Y.S.3d 106 ). Inasmuch as the defendants failed to demonstrate a reasonable excuse for their default, we need not reach the issue of whether they offered a potentially meritorious opposition to the motion (see Wells Fargo Bank v. Syed , 160 A.D.3d at 915, 76 N.Y.S.3d 63 ; Hamilton v. Adriatic Dev. Corp. , 150 A.D.3d at 835–836, 55 N.Y.S.3d 106 ).
Moreover, contrary to the defendants' contention, the alleged failure of the plaintiff to provide them with, among other things, the referee's report and notice of the plaintiff's motion to confirm the report and for a judgment of foreclosure and sale, was not a basis to vacate the judgment of foreclosure and sale and the sale of the subject property. "A motion to vacate pursuant to CPLR 5015 must be made within a reasonable time" ( Matter of McLaughlin , 111 A.D.3d 1185, 1186, 975 N.Y.S.2d 512 [internal quotation marks omitted]; see Long Is. Sav. Bank v. Mihalios , 269 A.D.2d 502, 503, 704 N.Y.S.2d 483 ). Here, the defendants' delay in moving to vacate the judgment of foreclosure and sale was unreasonable. Notice of entry of the judgment of foreclosure and sale was served on the defendants on September 21, 2009, and the defendants failed to move to vacate the judgment until approximately six years later.
A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2] ). Here, in support of their motion to renew, the defendants failed to present new facts that would change the prior determination. Accordingly, we agree with the Supreme Court's determination denying those branches of the defendants' motion which were for leave to renew those branches of their prior motion which were to vacate and set aside the judgment of foreclosure and sale and the sale of the subject property, and to dismiss the action insofar as asserted against them.
SCHEINKMAN, P.J., BALKIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.