Summary
In HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 117, 118 (2d Dep't 2017), the Second Department held that "bare denial of service of the summons and complaint [does] not constitute a reasonable excuse for [a defendant's] delay in answering, so as to entitle [a defendant] to serve a late answer."
Summary of this case from CitiMortg. v. BronnerOpinion
03-29-2017
HSBC BANK USA, N.A., etc., respondent, v. Coleen POWELL, et al., defendants, Angella J. Pusey, appellant.
Angella J. Pusey, Saint Albans, NY, appellant pro se. Greenberg Traurig, LLP, New York, NY (Dale R. Goldstein and Patrick G. Broderick of counsel), for respondent.
Angella J. Pusey, Saint Albans, NY, appellant pro se.
Greenberg Traurig, LLP, New York, NY (Dale R. Goldstein and Patrick G. Broderick of counsel), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to foreclose a mortgage, the defendant Angella J. Pusey appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered July 31, 2015, which denied her motion pursuant to CPLR 5015(a)(1) to vacate an order of reference of the same court entered upon her failure to appear or answer the complaint, and to compel the plaintiff to accept her late answer.
ORDERED that the order is affirmed, with costs.
On or about February 1, 2012, the plaintiff commenced this action to foreclose a mortgage given by the defendants Coleen Powell and Angella J. Pusey (hereinafter the appellant), securing a note in the amount of $560,500 and encumbering real property located in Saint Albans, Queens (hereinafter the property). According to an affidavit of service, the appellant was served, inter alia, with the summons and complaint on February 8, 2012, by delivery of the documents to a person of suitable age and discretion at the property, followed by a mailing of the documents to the appellant at the property. The appellant failed to appear, answer, or otherwise move with respect to the complaint, and the plaintiff thereafter moved, inter alia, for an order of reference, which motion was subsequently granted by the Supreme Court without opposition. On March 6, 2014, the appellant mailed an answer to the plaintiff's attorneys, which they rejected as untimely. In February 2015, the appellant moved to vacate the order of reference and to compel the plaintiff to accept her late answer, arguing, inter alia, that she was never served with the summons and complaint. The Supreme Court denied the motion. " ‘To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action’ " (JPMorgan Chase Bank, N.A. v. Comfort Boampong, 145 A.D.3d 981, 982, 44 N.Y.S.3d 189, quoting Deutsche Bank Natl. Trust Co. v. Kuldip, 136 A.D.3d 969, 969, 25 N.Y.S.3d 653 ; see CPLR 3012 [d] ; TCIF REO GCM, LLC v. Walker, 139 A.D.3d 704, 705, 32 N.Y.S.3d 223 ; Bank of N.Y. Mellon v. Colucci, 138 A.D.3d 1047, 30 N.Y.S.3d 667 ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ). " ‘The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court’ " (HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32, quoting Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ). Here, the appellant's bare denial of service of the summons and complaint did not constitute a reasonable excuse for her delay in answering, so as to entitle her to serve a late answer (see Goldfarb v. Zhukov, 145 A.D.3d 757, 43 N.Y.S.3d 135 ; Nationstar Mtge., LLC v. McLean, 140 A.D.3d 1131, 1132, 35 N.Y.S.3d 188 ; Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 140 A.D.3d 1054, 1055, 36 N.Y.S.3d 142 ; Aurora Loan Servs., LLC v. Lucero, 131 A.D.3d 496, 497, 14 N.Y.S.3d 707 ). For the same reasons, the appellant was not entitled to vacatur of the order of reference (see CPLR 5015[a][1] ; Nationstar Mtge., LLC v. McLean, 140 A.D.3d at 1132, 35 N.Y.S.3d 188 ).
Since the appellant failed to demonstrate a reasonable excuse, it is unnecessary to consider whether she demonstrated the existence of a potentially meritorious defense (see JPMorgan Chase Bank, N.A. v. Comfort Boampong, 145 A.D.3d 981, 44 N.Y.S.3d 189 ; Federal Natl. Mtge. Assn. v. Zapata, 143 A.D.3d 857, 858, 40 N.Y.S.3d 438 ; Bank of N.Y. Mellon v. Colucci, 138 A.D.3d 1047, 30 N.Y.S.3d 667 ).
The appellant's remaining contentions either are improperly raised for the first time on appeal or have been rendered academic by our determination.
Accordingly, the Supreme Court properly denied the appellant's motion to vacate the order of reference and to compel the plaintiff to accept her late answer.