Opinion
2020–07310 Index No. 16333/12
04-05-2023
HSBC BANK USA, N.A., etc., respondent, v. Stephen HUTCHINSON, appellant, et al., defendants.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Adam Leitman Bailey, P.C., New York, NY (Jackie Halpern Weinstein of counsel), for respondent.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.
Adam Leitman Bailey, P.C., New York, NY (Jackie Halpern Weinstein of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Stephen Hutchinson appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 13, 2019. The order, insofar as appealed from, granted the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated August 2, 2018, directing dismissal of the complaint upon the plaintiff's failure to appear at a scheduled conference and to restore the action to the active calendar.
ORDERED that the order dated November 13, 2019, is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate the order dated August 2, 2018, and to restore the action to the active calendar is denied.
In August 2012, the plaintiff commenced this action against the defendant Stephen Hutchinson (hereinafter the defendant), among others, to foreclose a residential mortgage on real property located in Brooklyn. After the matter was released from the foreclosure settlement conference part, the plaintiff moved for summary judgment on the complaint and for an order of reference, and the motion was denied. Thereafter, the defendant filed a note of issue and a conference was scheduled in the nonjury trial readiness part on August 2, 2018. On that date, the plaintiff failed to appear for the scheduled conference. In an order dated August 2, 2018, the Supreme Court directed dismissal of the complaint, in effect, pursuant to 22 NYCRR 202.27 (hereinafter the order of dismissal). In or around August 2019, the plaintiff moved to vacate the order of dismissal and to restore the action to the active calendar, asserting law office failure for its default in appearing at the scheduled conference. The defendant opposed the motion. In an order dated November 13, 2019, the court granted the plaintiff's motion. The defendant appeals.
"A plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action" ( Wells Fargo Bank, N.A. v. McClintock, 174 A.D.3d 950, 952, 107 N.Y.S.3d 46 ; see Hudson City Sav. Bank v. Augustin, 191 A.D.3d 774, 775, 142 N.Y.S.3d 89 ; Financial Freedom Acquisition, LLC v. Unknown Heirs to the estate of Kenner, 172 A.D.3d 1173, 1175, 103 N.Y.S.3d 95 ). Where the claim is supported by a detailed and credible explanation of the default, the court may accept law office failure as a reasonable excuse (see CPLR 2005 ; Hudson City Sav. Bank v. Augustin, 191 A.D.3d at 775, 142 N.Y.S.3d 89 ; Bank of Am., N.A. v. Wood, 185 A.D.3d 768, 769, 125 N.Y.S.3d 293 ; Option One Mtge. Corp. v. Rose, 164 A.D.3d 1251, 1252, 82 N.Y.S.3d 116 ). "Conclusory and unsubstantiated allegations of law office failure are not sufficient" ( U.S. Bank N.A. v. Barr, 139 A.D.3d 937, 938, 30 N.Y.S.3d 576 ; see U.S. Bank, N.A. v. Essaghof, 178 A.D.3d 876, 878, 113 N.Y.S.3d 238 ). "[M]ere neglect is not a reasonable excuse" ( OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ; see Bank of Am., N.A. v. Wood, 185 A.D.3d at 769, 125 N.Y.S.3d 293 ; U.S. Bank, N.A. v. Essaghof, 178 A.D.3d at 878, 113 N.Y.S.3d 238 ).
Here, the plaintiff's allegation of law office failure was conclusory and unsubstantiated. In an affirmation in support of the motion, inter alia, to vacate the order of dismissal, the plaintiff's counsel described her office's standard practices and procedures for receiving and processing notices and orders, and posited that her office had not received notice of the scheduled conference because there were "no notes, scanned images, or calendar steps" in the files that she reviewed. The plaintiff, however, failed to provide an affidavit from anyone with personal knowledge of the purported law office failure, provide any details regarding such failure, or provide any other evidence of the system's purported breakdown that led to counsel's nonappearance at the conference (see Hudson City Sav. Bank v. Augustin, 191 A.D.3d at 775, 142 N.Y.S.3d 89 ; Bank of Am., N.A. v. Wood, 185 A.D.3d at 769, 125 N.Y.S.3d 293 ; Deutsche Bank Natl. Trust Co. v. Fishbein, 179 A.D.3d 768, 770, 113 N.Y.S.3d 896 ; OneWest Bank, FSB v. Singer, 153 A.D.3d at 716, 59 N.Y.S.3d 480 ). Moreover, the plaintiff failed to provide a reasonable excuse for its delay in moving to vacate the order of dismissal (see Option One Mtge. Corp. v. Rose, 164 A.D.3d at 1252, 82 N.Y.S.3d 116 ; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 809, 24 N.Y.S.3d 523 ). Since the plaintiff failed to proffer a reasonable excuse its default, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see CPLR 5015[a][1] ; Hudson City Sav. Bank v. Augustin, 191 A.D.3d at 776, 142 N.Y.S.3d 89 ; Option One Mtge. Corp. v. Rose, 164 A.D.3d at 1253, 82 N.Y.S.3d 116 ).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.