Opinion
2014-03548 Index No. 15439/09.
02-24-2016
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Oral C. PATRICK, respondent, et al., defendants.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Leah N. Jacob of counsel), for appellant. Cabanillas & Associates, P.C., White Plains, N.Y. (Patricia M. Lattanzio and Nathan L. Mendenhall of counsel), for respondent.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Leah N. Jacob of counsel), for appellant.
Cabanillas & Associates, P.C., White Plains, N.Y. (Patricia M. Lattanzio and Nathan L. Mendenhall of counsel), for respondent.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Dear, J.), dated November 6, 2013, which denied its motion for leave to enter a default judgment against the defendants and for an order of reference, and granted the cross motion of the defendant Oral C. Patrick to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him for failure to comply with the notice provisions of the mortgage.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for leave to enter a default judgment against the defendants and for an order of reference is granted, and the cross motion of the defendant Oral C. Patrick to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him is denied.
“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing” (BAC Home Loans Servicing, LP v. Reardon, 132 A.D.3d 790, 18 N.Y.S.3d 664 [internal quotation marks omitted]; see CPLR 3215[f]; U.S. Bank N.A. v. Poku, 118 A.D.3d 980, 981, 989 N.Y.S.2d 75; Diederich v. Wetzel, 112 A.D.3d 883, 979 N.Y.S.2d 605; Green Tree Servicing, LLC v. Cary, 106 A.D.3d 691, 692, 965 N.Y.S.2d 511). Here, the plaintiff met all of these requirements. “The affidavits of service proffered by the plaintiff constitute prima facie evidence of proper service of the summons and complaint upon the defendants” (U.S. Bank N.A. v. Poku, 118 A.D.3d at 981, 989 N.Y.S.2d 75; see Carver Fed. Sav. Bank v. Supplice, 109 A.D.3d 572, 970 N.Y.S.2d 706; Deutsche Bank Natl. Trust Co. v. Jagroop, 104 A.D.3d 723, 724, 960 N.Y.S.2d 488; Bank of N.Y. v. Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105). Further, the affirmation of counsel and the affidavit of the plaintiff's servicing agent, together with the power of attorney demonstrating the authority of the agent to act on behalf of the plaintiff, provided proof of the facts constituting the claim, and proof of the defendants' default in answering the complaint (see CPLR 3215[f]; U.S. Bank N.A. v. Poku, 118 A.D.3d at 981, 989 N.Y.S.2d 75; Green Tree Servicing, LLC v. Cary, 106 A.D.3d at 692, 965 N.Y.S.2d 511; CWCapital Asset Mgt., LLC v. Great Neck Towers, LLC, 99 A.D.3d 850, 851, 953 N.Y.S.2d 89; Aames Capital Corp. v. Ford, 294 A.D.2d 134, 740 N.Y.S.2d 880).
To defeat the plaintiff's facially adequate CPLR 3215 motion, and to be relieved of his default in answering the complaint, the defendant mortgagor, Oral C. Patrick (hereinafter the defendant), had to establish that he had a reasonable excuse for his default and a potentially meritorious defense to the action (see Diederich v. Wetzel, 112 A.D.3d at 884, 979 N.Y.S.2d 605; Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 941 N.Y.S.2d 679). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d 1012, 5 N.Y.S.3d 883; see BAC Home Loans Servicing, LP v. Reardon, 132 A.D.3d at 790, 18 N.Y.S.3d 664; Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 986 N.Y.S.2d 578; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403). Here, the Supreme Court determined that the defendant had offered no reasonable excuse for his failure to serve a timely answer in the action. As this determination was a provident exercise of discretion, it was unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see BAC Home Loans Servicing, LP v. Reardon, 132 A.D.3d at 790, 18 N.Y.S.3d 664; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890, 909 N.Y.S.2d 403). Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment against the defendants and for an order of reference, and should have denied the defendant's cross motion to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him (see Green Tree Servicing, LLC v. Cary, 106 A.D.3d at 692, 965 N.Y.S.2d 511).
In light of our determination, we need not reach the parties' remaining contentions.