Opinion
2019–13695 Index No. 21055/10
12-20-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Christopher GESLANI, appellant, et al., defendants.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant. Stradley Ronon Stevens & Young, LLP, New York, NY (Matthew B. Johnson and Lijue T. Philip of counsel), for respondent.
Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.
Stradley Ronon Stevens & Young, LLP, New York, NY (Matthew B. Johnson and Lijue T. Philip of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Christopher Geslani appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered August 29, 2019. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court entered December 20, 2017, inter alia, granting those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Christopher Geslani and for an order of reference, and denying those branches of that defendant's cross-motion which were, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate his default in answering the complaint and pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale are denied, the referee's report is rejected, and the matter is remitted to the Supreme Court, Nassau County, for a new report computing the amount due to the plaintiff, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter.
In February 2010, the plaintiff commenced this action against, among others, the defendant Christopher Geslani (hereinafter the defendant) to foreclose a mortgage on certain residential property located in Bethpage. The defendant failed to answer the complaint.
As relevant to this appeal, in April 2017, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. The defendant cross-moved, among other things, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate his default in answering the complaint and pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer. In an order entered December 20, 2017, the Supreme Court, inter alia, granted those branches of the plaintiff's motion, denied those branches of the defendant's cross-motion, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.
In July 2018, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the motion. In an order and judgment of foreclosure and sale entered August 29, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.
The Supreme Court properly denied that branch of the defendant's cross-motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in answering the complaint. Here, the defendant waived a defense based on lack of personal jurisdiction by appearing in the action without raising an objection to personal jurisdiction (see Residential Credit Solutions, Inc. v. Guzman, 178 A.D.3d 1109, 1111, 112 N.Y.S.3d 578 ; HSBC Bank USA, N.A. v. Taub, 170 A.D.3d 1128, 1129–1130, 97 N.Y.S.3d 60 ). Moreover, a defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a)(1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Rauff, 205 A.D.3d 963, 965, 169 N.Y.S.3d 342 ; US Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278 ). Here, in light of the defendant's failure to establish a reasonable excuse for his default, as the only excuse he proffered was, in effect, lack of personal jurisdiction, the court properly denied those branches of the defendant's cross-motion which were, in effect, pursuant to CPLR 5015(a)(1) to vacate his default in answering the complaint and pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer (see U.S. Bank N.A. v. Rauff, 205 A.D.3d at 965, 169 N.Y.S.3d 342 ; US Bank N.A. v. Dedomenico, 162 A.D.3d at 964, 80 N.Y.S.3d 278 ; see generally Bank of N.Y. Mellon Trust Co., N.A. v. Barone, 209 A.D.3d 939, 942, 177 N.Y.S.3d 294 ). Since the defendant failed to demonstrate a reasonable excuse for his default, it is unnecessary to determine whether he demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Rauff, 205 A.D.3d at 966, 169 N.Y.S.3d 342 ; Bank of N.Y. Mellon v. Daniels, 180 A.D.3d 738, 739, 115 N.Y.S.3d 904 ).
However, the Supreme Court erred in granting those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale. "The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" ( HSBC Bank USA, N.A. v. Cherestal, 178 A.D.3d 680, 682, 113 N.Y.S.3d 206 [internal quotation marks omitted]). In support of its motion, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, the plaintiff submitted, inter alia, the referee's oath and report, to which were annexed, among other things, copies of the note and mortgage as well as an affidavit of Jillian Thrasher, a contract management coordinator for Ocwen Loan Servicing, LLC, the plaintiff's loan servicer. Thrasher averred therein that the defendant was "in default for failing to tender the required monthly payments when due" and set forth a breakdown of the amounts due and owing on the mortgage loan as of September 27, 2014. However, since Thrasher's computations as to the amounts due were based on unidentified and unproduced business records, her assertions in those regards constituted inadmissible hearsay and lacked probative value (see Wells Fargo Bank, N.A. v. Campbell, 196 A.D.3d 726, 727, 148 N.Y.S.3d 703 ; HSBC Bank USA, N.A. v. Cherestal, 178 A.D.3d at 683, 113 N.Y.S.3d 206 ). Consequently, the referee's findings were not substantially supported by the record (see Wells Fargo Bank, N.A. v. Campbell, 196 A.D.3d at 727, 148 N.Y.S.3d 703 ).
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale, and the matter must be remitted to the Supreme Court, Nassau County, for a new report computing the amount due to the plaintiff, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter.
The defendant's remaining contention is without merit.
DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.