Opinion
03-02-2016
KI 12, LLC, respondent, v. Shelley E. JOSEPH, et al., defendants, Bank of America, N.A., etc., appellant.
Houser & Allison, APC, New York, N.Y. (Fletcher W. Moore and Kathleen Massimo of counsel), for appellant. Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Jon Holden Adams of counsel), for respondent.
Houser & Allison, APC, New York, N.Y. (Fletcher W. Moore and Kathleen Massimo of counsel), for appellant.
Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Jon Holden Adams of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action pursuant to RPAPL article 15 to determine claims to real property, the defendant Bank of America, N.A., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Orange County (Colangelo, J.), dated February 11, 2014, as, upon an order of the same court also dated February 11, 2014, granting that branch of the plaintiff's motion which was for leave to enter a default judgment against it, canceled its mortgage on the subject property. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512[a] ).
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
To successfully oppose a motion for leave to enter a default judgment, the opposing party is required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Diederich v. Wetzel, 112 A.D.3d 883, 884, 979 N.Y.S.2d 605 ; Blake v. United States of Am., 109 A.D.3d 504, 505, 970 N.Y.S.2d 465 ; Karalis v. New Dimensions HR, Inc., 105 A.D.3d 707, 708, 962 N.Y.S.2d 647 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789, 921 N.Y.S.2d 643 ; Maurice v. Maurice, 78 A.D.3d 792, 793, 910 N.Y.S.2d 658 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 789, 921 N.Y.S.2d 643 [internal quotation marks omitted]; see Glauber v. Ekstein, 133 A.D.3d 713, 19 N.Y.S.3d 189 ; BAC Home Loans Servicing, LP v. Reardon, 132 A.D.3d 790, 18 N.Y.S.3d 664 ; Mitrani Plasterers Co., Inc. v. SCG Contr. Corp., 97 A.D.3d 552, 552, 947 N.Y.S.2d 339 ).
Here, the appellant failed to demonstrate a reasonable excuse, or any excuse, for its failure to answer the complaint (see Karalis v. New Dimensions HR, Inc., 105 A.D.3d at 708, 962 N.Y.S.2d 647 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643 ). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense (see Diederich v. Wetzel, 112 A.D.3d at 884, 979 N.Y.S.2d 605 ; Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513 ; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643 ).
The appellant's remaining contention that the principles of equity prevent the granting of a default judgment against it is without merit (see e.g. Matthew v. Thompson, 65 A.D.3d 1095, 1097, 887 N.Y.S.2d 588 ; Matter of Ellis v. City of Rochester, 227 A.D.2d 904, 643 N.Y.S.2d 279 ).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the appellant and thereupon issued a judgment canceling the appellant's mortgage on the subject property.