Opinion
2014-10-15
HSBC BANK USA, NATIONAL ASSOCIATION, respondent, v. Oruene ROTIMI, appellant, et al., defendants.
Carl E. Person, New York, N.Y., for appellant. Hinshaw & Culbertson LLP, New York, N.Y. (Schuyler B. Kraus and Khardeen I. Shillingford of counsel), for respondent.
Carl E. Person, New York, N.Y., for appellant. Hinshaw & Culbertson LLP, New York, N.Y. (Schuyler B. Kraus and Khardeen I. Shillingford of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
In an action to foreclose a mortgage, the defendant Oruene Rotimi appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated November 14, 2012, which denied her motion, inter alia, for leave to interpose a late answer and to dismiss the complaint insofar as asserted against her.
ORDERED that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense ( seeCPLR 2004, 3012[d]; Chase Home Fin., LLC v. Minott, 115 A.D.3d 634, 981 N.Y.S.2d 757; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 932 N.Y.S.2d 378; Taddeo–Amendola v. 970 Assets, LLC, 72 A.D.3d 677, 897 N.Y.S.2d 642).
The defendant Oruene Rotimi (hereinafter the defendant) was served with the summons and complaint in this mortgage foreclosure action and failed to interpose an answer. Under the circumstances of this case, the defendant's purported reliance upon statements from the loan servicer do not constitute a reasonable excuse ( see e.g. HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32; Chase Home Fin., LLC v. Minott, 115 A.D.3d at 634, 981 N.Y.S.2d 757; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d at 785, 932 N.Y.S.2d 378). Moreover, the defendant's assertions are belied by the language included in the summons warning her that she was in “IN DANGER OF LOSING” her home, that she should “ [s]peak to an attorney or go to the court,” and that she “MUST RESPOND BY SERVING A COPY OF THE ANSWER” ( seeRPAPL 1320; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32; Chase Home Fin., LLC v. Minott, 115 A.D.3d at 634–635, 981 N.Y.S.2d 757).
Since the defendant failed to offer a reasonable excuse, it is unnecessary to consider whether she sufficiently demonstrated a potentially meritorious defense ( see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32; 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 defendant's motion, among other things, for leave to interpose a late answer and to dismiss the complaint insofar as asserted against her.