Opinion
2013-11-20
MADISON ACQUISITION GROUP, LLC, appellant, v. 7614 FOURTH REAL ESTATE DEVELOPMENT, LLC, et al., defendants, Mousa Khalil, respondent.
Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein, Jennifer A. Tolston, and Michael Bonneville of counsel), for appellant. Campolo, Middleton & McCormick, LLP, Bohemia, N.Y. (Patrick McCormick and Jeffrey Basso of counsel), for respondent.
Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein, Jennifer A. Tolston, and Michael Bonneville of counsel), for appellant. Campolo, Middleton & McCormick, LLP, Bohemia, N.Y. (Patrick McCormick and Jeffrey Basso of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated November 9, 2012, which granted the motion of the defendant Mousa Khalil pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court dated January 17, 2012, entered upon his default in answering the complaint.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the motion is denied.
“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” (Wells Fargo Bank v. Malave, 107 A.D.3d 880, 880–881, 968 N.Y.S.2d 127; see CPLR 5015[a][1] ). Such a motion “is addressed to the sound discretion of the court” (Needleman v. Tornheim, 106 A.D.3d 707, 708, 964 N.Y.S.2d 231).
As the plaintiff correctly contends, the Supreme Court improvidently exercised its discretion by, in effect, vacating the default of the defendant Mousa Khalil. The record demonstrates that Khalil was validly served in the action, as he failed to come forward with any factually specific, detailed evidence to rebut the presumption of valid service created by the process server's affidavit of service ( see ACT Props., LLC v. Garcia, 102 A.D.3d 712, 713, 957 N.Y.S.2d 884; Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 952 N.Y.S.2d 239; Bank of N.Y. v. Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105). Moreover, Khalil's assertion that he did not serve an answer because he thought that the attorneys for his codefendants also were representing his interests is insufficient to constitute a reasonable excuse for the default. The evidence in the record establishes that any such belief on the part of Khalil was unreasonable under the circumstances of this case ( see Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66).
Moreover, in light of the language of the guaranty that he executed, Khalil failed to demonstrate a potentially meritorious defense ( see Inland Mtge. Capital Corp. v. Realty Equities NM, LLC, 71 A.D.3d 1089, 1090, 900 N.Y.S.2d 79; North Fork Bank v. Computerized Quality Separation Corp., 62 A.D.3d 973, 879 N.Y.S.2d 575; Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1).
Khalil's remaining contentions are without merit. MASTRO, J.P., LEVENTHAL, AUSTIN and SGROI, JJ., concur.