Opinion
2015-07-01
CITIMORTGAGE, INC., respondent, v. Joseph KOWALSKI, et al., appellants, et al., defendants.
Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.
Nicholas M. Moccia, P.C., Staten Island, N.Y., for appellants. Akerman LLP, New York, N.Y. (Jordan M. Smith and Erica R. Stein of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
In an action to foreclose a mortgage, the defendants Joseph Kowalski and Elaina Kowalski appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated February 21, 2014, as denied those branches of their motion which were pursuant to CPLR 317 to vacate an order of reference of the same court dated July 9, 2012, entered upon their failure to appear or answer the complaint, and pursuant to CPLR 3012(d) to extend their time to serve an answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The appellants were not entitled to relief pursuant to CPLR 317, as they failed to show that they did not receive notice of the action in time to defend themselves from it ( see JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d 1048, 1050, 996 N.Y.S.2d 68; Chichester v. Alal–Amin Grocery & Halal Meat, 100 A.D.3d 820, 821, 954 N.Y.S.2d 577). The mere denial of receipt of the summons and complaint is insufficient to establish a lack of actual notice for the purpose of CPLR 317 ( see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 654, 968 N.Y.S.2d 93; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 753, 941 N.Y.S.2d 679; Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081–1082, 923 N.Y.S.2d 572).
Further, the Supreme Court properly denied that branch of the appellants' motion which was pursuant to CPLR 3012(d) to extend their time to serve an answer. A defendant who has failed to timely answer a complaint must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action ( see Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d 1012, 5 N.Y.S.3d 883; Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 986 N.Y.S.2d 578). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court ( see Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 986 N.Y.S.2d 578). Here, the appellants failed to provide a reasonable excuse for the lengthy delay in seeking to answer the complaint ( see Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d 1012, 5 N.Y.S.3d 883). As such, it is unnecessary to determine whether the appellants demonstrated the existence of a potentially meritorious defense to the action ( see id.).
Contrary to the appellants' contention, the plaintiff did not abandon the action by failing to initiate proceedings for the entry of a default judgment of foreclosure and sale within one year of their default ( seeCPLR 3215[c]; see also HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839, 4 N.Y.S.3d 47; Klein v. St. Cyprian Props., Inc., 100 A.D.3d 711, 712, 954 N.Y.S.2d 170).
Accordingly, the Supreme Court properly denied the subject branches of the appellants' motion.