Opinion
2014-03-5
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Jeffrey LAFAZAN, et al., appellants, et al., defendants.
Gertler Law Group, LLC, East Meadow, N.Y. (Richard G. Gertler of counsel), for appellants. Fein, Such & Crane, LLP, Chestnut Ridge, N.Y. (Michael S. Hanusek and Richard Gerbino of counsel), for respondent.
Gertler Law Group, LLC, East Meadow, N.Y. (Richard G. Gertler of counsel), for appellants. Fein, Such & Crane, LLP, Chestnut Ridge, N.Y. (Michael S. Hanusek and Richard Gerbino of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the defendants Jeffrey Lafazan and Sandra Lafazan appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered August 24, 2012, which denied their motion pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their late answer.
ORDERED that the order is affirmed, with costs.
“To compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” ( Ryan v. Breezy Point Coop., Inc., 76 A.D.3d 523, 524, 904 N.Y.S.2d 910;see Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 785, 932 N.Y.S.2d 378). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” ( Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403;see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357;Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557).
Here, the appellants' appearance and participation, along with their counsel, at settlement conferences required for certain residential mortgage foreclosure actions ( see22 NYCRR 202.12–a) evinced a desire to save their home. However, such appearances do not provide a reasonable excuse for their delay in answering. At the time the first conference was held, approximately 261 days had passed since the appellants' time to answer the complaint had expired ( seeCPLR 3012[a] ). Under the circumstances of this case, the appellants' purported reliance on settlement discussions and their contention, in effect, that the plaintiff's counsel should have advised them that they were in default, do not constitute a reasonable excuse ( see Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d at 785, 932 N.Y.S.2d 378;see also Onewest Bank FSB v. Berry, 25 Misc.3d 1218[A], 2009 WL 3417852, 2009 N.Y. Slip Op. 52171[U] [Sup.Ct., Suffolk County] ). Moreover, these assertions are belied by the content and warning contained in the specialized summons served in this action to foreclose a residential mortgage ( seeRPAPL 1320). Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they sufficiently demonstrated the existence of a potentially meritorious defense ( see U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411).
Accordingly, the Supreme Court properly denied the appellants' motion pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their answer as timely.