Opinion
05-03-2017
BANK OF AMERICA, N.A., respondent, v. Kanwal N. AGARWAL, et al., appellants, et al., defendants.
Harvey Sorid, Uniondale, NY, for appellants. Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), for respondent.
Harvey Sorid, Uniondale, NY, for appellants.
Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action to foreclose a mortgage, the defendants Kanwal N. Agarwal and Shilpa Agarwal appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered November 17, 2014, which granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and denied their cross motion, in effect, to vacate their default in answering the complaint and to dismiss the complaint insofar as asserted against them, inter alia, based upon the plaintiff's failure to comply with RPAPL 1304, or for leave to serve a late answer.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage against the defendants Kanwal N. Agarwal and Shilpa Agarwal (hereinafter together the defendants), among others. The defendants did not answer the complaint. After a foreclosure settlement conference, the Supreme Court granted the plaintiff's unopposed motion for a default judgment and an order of reference. The plaintiff subsequently moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendants opposed the motion and cross-moved, in effect, to vacate their default in answering the complaint and to dismiss the complaint insofar as asserted against them, inter alia, based upon the plaintiff's failure to comply with RPAPL 1304, or for leave to serve a late answer. In an order entered November 17, 2014, the Supreme Court granted the plaintiff's motion and denied the defendants' cross motion. The defendants appeal.
"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" ( HSBC Bank USA, N.A. v. Clayton, 146 A.D.3d 942, 944, 45 N.Y.S.3d 543 [internal quotation marks omitted]; see CPLR 3215[f] ; Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 843, 7 N.Y.S.3d 147 ; U.S. Bank, N.A. v. Razon, 115 A.D.3d 739, 740, 981 N.Y.S.2d 571 ). Here, the plaintiff satisfied these requirements (see U.S. Bank, N.A. v. Razon, 115 A.D.3d at 740, 981 N.Y.S.2d 571 ).
A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 2004 ; 3012[d]; Chase Home Fin., LLC v. Minott, 115 A.D.3d 634, 634, 981 N.Y.S.2d 757 ; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 785, 932 N.Y.S.2d 378 ; Taddeo–Amendola v. 970 Assets, LLC, 72 A.D.3d 677, 897 N.Y.S.2d 642 ). In opposition to the plaintiff's motion, and in support of their cross motion, the defendants failed to offer any excuse for their default. Accordingly, it is unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense (see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ; U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 741, 948 N.Y.S.2d 411 ; see also HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647 ), including the plaintiff's purported failure to comply with the notice requirements of RPAPL 1304 and paragraph 22 of the mortgage (see HSBC Bank, USA, N.A. v. Clayton, 146 A.D.3d at 942, 46 N.Y.S.3d 159 ).
Accordingly, the Supreme Court properly granted the plaintiff's motion and denied the defendants' cross motion.
The defendants' remaining contention is improperly raised for the first time on appeal.