Opinion
2016–02081 Index No.18506/13
01-17-2018
BANK OF AMERICA, N.A., respondent, v. Brian Jonathan WELGA, et al., appellants, et al., defendant.
Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester and Gabriel R. Korinman of counsel), for appellants. Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester and Gabriel R. Korinman of counsel), for appellants.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal from an order of the Supreme Court, Suffolk County (Ralph T. Gazzillo, J.), dated July 28, 2015. The order denied the motion of the defendants Brian Jonathan Welga and Tara Welga to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction or, in effect, to vacate their default in answering the complaint and for leave to serve a late answer.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this mortgage foreclosure action in July 2013, alleging that the defendants Brian Jonathan Welga and Tara Welga (hereinafter together the defendants) failed to make certain required payments. It is undisputed that the defendants defaulted in answering the complaint. In January 2014, the defendants served an answer, which the plaintiff rejected as untimely. Subsequently, the defendants moved to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction or, in effect, to vacate their default in answering the complaint and for leave to serve a late answer. The Supreme Court denied the motion, and the defendants appeal.
"[A] process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). Here, contrary to the defendants' contention, their submissions were insufficient to rebut the presumption of proper service pursuant to CPLR 308(1) and (2). Therefore, the Supreme Court properly denied that branch of their motion which was to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction.
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] ; Deutsche Bank Natl. Trust Co. v. Kuldip, 136 A.D.3d 969, 969, 25 N.Y.S.3d 653 ; One West Bank, FSB v. Valdez, 128 A.D.3d 655, 655, 8 N.Y.S.3d 419 ; Citimortgage, Inc. v. Stover, 124 A.D.3d 575, 576, 2 N.Y.S.3d 147 ; Chase Home Fin., LLC v. Minott, 115 A.D.3d 634, 981 N.Y.S.2d 757 ; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 932 N.Y.S.2d 378; Taddeo–Amendola v. 970 Assets, LLC, 72 A.D.3d 677, 897 N.Y.S.2d 642 ). " ‘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 647, 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 defendants failed to demonstrate a reasonable excuse for their default. In light of the defendants' failure to offer a reasonable excuse, 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 at 648, 983 N.Y.S.2d 32 ; U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 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 ).
Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, to vacate their default in answering the complaint and for leave to serve a late answer.
HALL, J.P., HINDS–RADIX, MALTESE and IANNACCI, JJ., concur.