Opinion
2013-08805
08-05-2015
CITIBANK, N.A., etc., respondent, v. Heather P. BOYCE, also known as Heather Boyce, et al., appellants, et al., defendant.
Zinker & Herzberg, LLP, Hauppauge, N.Y. (Jeffrey Herzberg of counsel), for appellants. Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger, Thomas J. Schell, and Jessica H. Fischweicher of counsel), for respondent.
Zinker & Herzberg, LLP, Hauppauge, N.Y. (Jeffrey Herzberg of counsel), for appellants.
Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger, Thomas J. Schell, and Jessica H. Fischweicher of counsel), for respondent.
Opinion
In an action to foreclose a mortgage, the defendants Heather P. Boyce, also known as Heather Boyce, and Sherwood L. Boyce, also known as Sherwood Boyce, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated June 21, 2013, as denied their motion pursuant to CPLR 5015(a)(1) to vacate an order of reference of the same court dated July 19, 2010, entered upon their failure to appear or answer the complaint, and for leave to interpose an answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
To vacate an order of reference entered upon their default in appearing or answering the complaint, the defendants Heather P. Boyce, also known as Heather Boyce, and Sherwood L. Boyce, also known as Sherwood Boyce (hereinafter together the defendants), were required to demonstrate a reasonable excuse for their default and a potentially meritorious defense to the action (see CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; EMC Mtge. Corp. v. Lamb, 126 A.D.3d 669, 669, 5 N.Y.S.3d 208 ; Deutsche Bank Natl. Trust Co. v. Ramirez, 117 A.D.3d 674, 675, 985 N.Y.S.2d 616 ). The defendants failed to demonstrate a reasonable excuse for their default. In the absence of a reasonable excuse, it is unnecessary to determine whether the defendants demonstrated the existence of a potentially meritorious defense (see Duran v. Milord, 126 A.D.3d 932, 933, 7 N.Y.S.3d 176 ; Betz v. Carbone, 126 A.D.3d 743, 744, 5 N.Y.S.3d 256 ).
The defendants' remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendants' motion to vacate the order of reference and for leave to interpose an answer.
RIVERA, J.P., LEVENTHAL, ROMAN and HINDS–RADIX, JJ., concur.