Opinion
18742/2010
03-13-2012
American Community Bank v. Sandro Aiosa, MARIA AIOSA, and DAVE WEST INDIAN PRODUCTS CORP.,
For the Plaintiff: Pinks, Arbeit & Nemeth, by Steven G. Pinks, Esq. For the Defendants Sandro Aiosa and Maria Aiosa: Daniel Tanon, Esq.
For the Plaintiff: Pinks, Arbeit & Nemeth, by Steven G. Pinks, Esq.
For the Defendants Sandro Aiosa and Maria Aiosa: Daniel Tanon, Esq.
Charles J. Markey, J.
Defendants Sandro Aiosa and Maria Aiosa move to vacate the judgment entered against them upon a purported default in answering the foreclosure complaint against them, vacate the order of reference, allow the defendants an opportunity to respond to the allegations in the complaint, and set this matter down for a preliminary conference.
Although the decision whether to vacate a default judgment generally rests within the sound discretion of the trial court, public policy favors a disposition on the merits (see, Centennial Elevator Indus., Inc. v Ninety—Five Madison Corp., 90 AD3d 689 [2nd Dept. 2011]; Dimitriadis v Visiting Nurse Service of New York, 84 AD3d 1150 [2nd Dept. 2011]; Berardo v Guillet, 86 AD3d 459, 459 [1st Dept. 2011]; Yu v Vantage Mgt. Servs., LLC, 85 AD3d 564[1st Dept. 2011]; Billingly v Blagrove, 84 AD3d 848, 849 [2nd Dept. 2011]; Gerdes v Canales, 74 AD3d 1017 [2nd Dept. 2010]; Khanal v Sheldon, 74 AD3d 894, 896 [2nd Dept. 2010]; Rakowicz v Fashion Institute of Technology, 65 AD3d 536, 537 [2nd Dept. 2009]; Reed v Grossi, 59 AD3d 509, 511-512 [2nd Dept. 2009]; Bunch v Dollar Budget, Inc., 12 AD3d 391 [2nd Dept. 2004]; Wilcox v U-Haul Co., 256 AD2d 973 [3rd Dept. 1998]; Zara Realty Holding Corp. v. E & J Deli and Grocery, Inc., 2012 WL 687904, 2012 NY Slip Op. 50364(U) [Sup Ct Queens County 2012] [decision by the undersigned]; U.S. Bank Nat. Ass'n v. Nyarkoha, 2012 WL 662205, 2012 NY Slip Op. 50353(U) [Sup Ct Queens County 2012] [decision by the undersigned].
As the Appellate Division, Second Judicial Department, just recently emphasized in Toll Brothers, Inc. v. Dorsch, 91 AD3d 755 [2012], in reversing a determination of the IAS Court:
"A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (Clover M. Barrett, P.C. v Gordon, 90 AD3d 973, ————, 936 NYS2d 217 [2nd Dept. 2011]; see, Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628, 896 NYS2d 396). "Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible" (Dimitriadis v. Visiting Nurse Serv. of NY, 84 AD3d 1150, 1150—1151, 923 N.Y.S.2d 691; see, U.S. Bank, N.A. v Dick, 67 AD3d 900, 902, 889 NYS2d 223; Moore v Day, 55 AD3d 803, 804, 866 NYS2d 303).
Here, the defendant established both a reasonable excuse for the default, and the existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits (see, Dimitriadis v Visiting Nurse Serv. of NY, 84 A.3d at 1151, 923 NYS2d 691; Moore v Day, 55 AD3d at 805, 866 NYS2d 303; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313, 863 NYS2d 231; Ahmad v Aniolowiski, 28 AD3d 692, 693, 814 NYS2d 666). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default.
Here, the judgment of foreclosure and sale, which was granted on the basis of the defendants' purported default in serving an answer to the plaintiff's complaint which they received service of on or about August 1, 2010, must be vacated. The defendants' proof of service of their Verified Answer upon the plaintiff, which included an affidavit of service by regular mail that was notarized by their attorney and a United States Postal Service certificate of mailing, both dated August 20, 2010, are sufficient to warrant the subject relief (cf. Centennial Elevator Indus., Inc. v. Ninety-Five Madison Corp., 90 AD3d 689, supra). The Court also notes that a copy of the Verified Answer was contemporaneously filed with the County Clerk.
Further, although the Court need consider the potential merit of the moving defendants' defense to this action under the circumstances presented herein, the papers submitted in support of the motion do demonstrate the existence of a meritorious defense (see generally, Northeast Steel Products, Inc. v. John Little Designs, Inc., 80 AD3d 585 [2nd Dept. 2011]).
Specifically, the moving defendants contend that the plaintiff's claim of a default is not genuine since they were making payments on the mortgage. In European American Bank v Harper, 163 AD2d 458 [1990], the Appellate Division, Second Judicial Department, stated:
It appears that the defendant has a meritorious defense to this foreclosure action since the action was concededly premised upon her failure to make certain mortgage payments which she had tendered in a timely manner and which the plaintiff and its predecessor had refused to accept. Furthermore, the defendant's allegations, if proven, establish that the plaintiff rejected her offer to pay the accumulated mortgage arrears unless she also paid attorneys' fees which were incurred as a result of the mortgagee's refusal to accept her payments, and which amounted to a sum twice that of the total mortgage arrears. The equitable remedy of foreclosure may be denied in order to prevent unconscionable overreaching by a mortgagee 163 AD2d at 460-461.
As the court in Washington Mut. Bank v St. Nicholas Ave. Holdings, LLC, 24 Misc 3d 1234(A), 2009 WL 2451011, 2009 NY Slip Op. 51745(U) [Sup Ct New York County 2009], similarly stated:
Here, the default is excusable and there is no evidence whatsoever that Defendant intended to ignore, neglect or default in this matter (and the above facts indicate the contrary). Although a meritorious defense need not be shown, Defendant made numerous efforts to pay the two months that were late, and even attempted to pay more, but was rejected. He, perhaps, naively, believed that his communications with the Bank were in search of a resolution and he had no reason to believe that foreclosure was in the works. Defendant tendered all payments for the months that have now elapsed and stands ready to do so.
Accord, Geary v Dade Development Corp., 29 NY2d 457, 459-460 [1972] [within provision of purchase money mortgage, covering land subdivided into lots, that upon the sale or encumbrance of any lot, purchaser shall pay $2,000 for each such lot, vendors shall accept purchasers' check as payment, and, as each lot is sold or encumbered and paid for, vendors shall deliver releases, letter of purchasers' counsel notifying vendors that purchasers were ready to pay for release of 21 lots and that he had $42,000 check was a sufficient offer of performance to prevent vendors from claiming no "tender" of a check; on the evidence, it was apparent that vendors' refusal to execute releases was simply an attempt to get more money not because of lack of a "tender."].
Accordingly, in light of the foregoing discussion, the Judgment of Foreclosure and Sale, dated July 15, 2011, is hereby vacated, and the answer annexed to the defendants' motion is deemed served on the plaintiff.
The order of reference filed on February 8, 2011 is also vacated..
The matter shall be set down for a preliminary conference to be held on April 23, 2012, at 11:00 A.M., in the Preliminary Conference Part in the Jamaica courthouse at 88-11 Sutphin Boulevard, Jamaica, Queens County, New York.
The foregoing constitutes the decision, opinion, and order of the Court.
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J.S.C.
Dated: March 13, 2012