Opinion
06-16-2016
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Holders of the HSI Asset Securitization Corporation Trust 2006–HE1, Respondent, v. Martin BECKMAN, also known as Martin C. Beckman, et al., Defendants, and Nanci Beckman, also known as Nanci G. Beckman, Appellant.
John P. Kingsley, PC, Catskill (John P. Kingsley of counsel), for appellant. Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), and Sandelands Eyet LLP, New York City (Margaret S. Stefandl of counsel), for respondent.
John P. Kingsley, PC, Catskill (John P. Kingsley of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), and Sandelands Eyet LLP, New York City (Margaret S. Stefandl of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, CLARK and AARONS, JJ.
ROSE, J. Appeals (1) from an order of the Supreme Court (Zwack, J.), entered March 18, 2015 in Rensselaer County, which, among other things, granted plaintiff's motion for a judgment of foreclosure and sale, and (2) from the judgment entered thereon.
Plaintiff commenced this mortgage foreclosure action in 2012, more than three years after defendants Nanci Beckman and Martin Beckman defaulted on the mortgage note. The Beckmans made no attempt to answer, prompting plaintiff to move for a default order of reference, which Supreme Court granted in February 2014. Plaintiff thereafter moved for a final judgment of foreclosure, which, for the first time, drew opposition from Nanci Beckman (hereinafter Beckman), who cross-moved for permission to serve a late answer and to vacate the order of reference. Supreme Court denied Beckman's cross motion and entered a judgment of foreclosure and sale in favor of plaintiff. Beckman now appeals. We affirm. “As the party seeking to vacate a default judgment, [Beckman] bore the burden of demonstrating a reasonable excuse for [her] default and a meritorious defense to the action” (Washington Mut. Bank v. Fisette, 66 A.D.3d 1287, 1287, 887 N.Y.S.2d 728 [2009] ; see CPLR 5015 [a]; EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 862, 25 N.Y.S.3d 312 [2016] ; Marine Midland Bank v. Fanning, 233 A.D.2d 600, 600, 649 N.Y.S.2d 102 [1996] ). To that end, Beckman claims that she failed to file an answer because she was not served with the summons and complaint, an assertion that is contradicted by the affidavit of service of Stephen Moeske. Moeske averred that, in June 2012, he personally served Beckman at her home, asked her whether she was serving in the military and observed her approximate age, weight, height and hair color. In response, Beckman stated, in her own affidavit, that she “never received any summons, summons and notice, complaint, whether by in-hand service, mail, or otherwise.” However, “[t]his bare and unsubstantiated denial of service lack[s] the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service” and, thus, it cannot excuse her default (Community W. Bank, N.A. v. Stephen, 127 A.D.3d 1008, 1009, 9 N.Y.S.3d 275 [2015] ; see Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 [2014] ; Christiana Bank & Trust Co. v. Eichler, 94 A.D.3d 1170, 1170–1171, 942 N.Y.S.2d 241 [2012] ). Nor do Beckman's allegations that her assigned counsel ineffectively represented her during and after settlement conferences constitute a reasonable excuse, inasmuch as the conferences did not begin until several months after her time to answer had expired (see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 [2014] ; Valiotis v. Psaroudis, 78 A.D.3d 683, 684, 911 N.Y.S.2d 111 [2010], lv. denied 16 N.Y.3d 713, 2011 WL 1675780 [2011] ).
Finally, although Beckman claims that she was fraudulently induced into executing the mortgage loan, there is no evidence that the nature of the purported fraud prevented her from fully and fairly litigating this dispute (see EMC Mtge. Corp. v. Toussaint, 136 A.D.3d at 862–863, 25 N.Y.S.3d 312; Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679, 810 N.Y.S.2d 923 [2006] ). Given that Beckman has not offered a reasonable excuse for her default, it is unnecessary for us to address the merits of her various affirmative defenses (see Rutnik & Corr CPA's, P.C. v. Guptill Farms, Inc., 127 A.D.3d 1531, 1532, 7 N.Y.S.3d 719 [2015] ; Wadsworth v. Sweet, 106 A.D.3d 1433, 1434, 966 N.Y.S.2d 584 [2013] ).
ORDERED that the order and judgment are affirmed, with costs.
PETERS, P.J., GARRY, CLARK and AARONS, JJ., concur.