Opinion
2012-10-10
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Purcell CONWAY, appellant, et al., defendants.
Purcell Conway, Averne, N.Y., appellant pro se. Frenkel Lambert Weiss Weisman & Gordon, LLP, New York, N.Y. (Barry Weiss of counsel), for respondent.
Purcell Conway, Averne, N.Y., appellant pro se. Frenkel Lambert Weiss Weisman & Gordon, LLP, New York, N.Y. (Barry Weiss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Purcell Conway appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Nahman, J.), dated May 6, 2011, as denied those branches of his motion which were, in effect, to vacate a judgment of foreclosure and sale of the same court (Kelly, J.), entered January 18, 2008, upon his default in answering or appearing, and pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the defendant Purcell Conway (hereinafter the appellant) which was, in effect, to vacate a judgment of foreclosure and sale entered January 18, 2008, upon his default in answering or appearing. A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action ( seeCPLR 5015[a][1];U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411;Fremont Inv. & Loan v. Bertram, 90 A.D.3d 988, 988, 934 N.Y.S.2d 822;Citimortgage, Inc. v. Brown, 83 A.D.3d 644, 645, 919 N.Y.S.2d 894). Here, the appellant failed to set forth a reasonable excuse for his default in appearing or answering the complaint ( see Fremont Inv. & Loan v. Bertram, 90 A.D.3d at 988, 934 N.Y.S.2d 822). Since the appellant failed to demonstrate a reasonable excuse for his default, we need not consider whether he proffered a potentially meritorious defense to the action ( see U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411;Fremont Inv. & Loan v. Bertram, 90 A.D.3d at 988, 934 N.Y.S.2d 822).
The appellant's remaining contentions need not be reached in light of the foregoing determination.