Opinion
CA 01-02606
June 14, 2002.
Appeal from an order of Supreme Court, Jefferson County (Gilbert, J.), entered September 19, 2001, which, inter alia, granted the motion of respondent The CIT Group/Consumer Finance, Inc. (NY) to vacate a judgment of foreclosure, dated August 6, 2001, with respect to Tax Parcel No. 73.00-1-13.7.
JOHN V. HARTZELL, COUNTY ATTORNEY, WATERTOWN, FOR PETITIONER- APPELLANT.
McNAMEE, LOCHNER, TITUS WILLIAMS, P.C., ALBANY (KEVIN LAURILLIARD OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the default judgment is reinstated.
Memorandum:
Supreme Court abused its discretion in granting respondent's motion pursuant to CPLR 5015 (a) (1) seeking to vacate the judgment of foreclosure ( see e.g. Crespo v. A.D.A. Mgt., 292 A.D.2d 5 [Mar. 12, 2002]). Respondent failed to demonstrate either a reasonable excuse for its default or a meritorious defense to the action ( see Shouse v. Lyons, 265 A.D.2d 901, 902; Kenny v. Vigliano [appeal No. 2], 182 A.D.2d 1134, citing Gray v. B.R. Trucking Co., 59 N.Y.2d 649, rearg dismissed 59 N.Y.2d 966, 60 N.Y.2d 586). Respondent contends that it established a reasonable excuse for its default based on the fact that it closed one of its offices and did not notify petitioner of a change of address, so that it did not receive the notice and petition of foreclosure. Any lack of notice based on respondent's own failure to provide petitioner with an updated address would not constitute a reasonable excuse for the default ( see Crespo, 292 A.D.2d 9, 10). In any event, respondent received actual notice at one of its other offices. We further reject the contention of respondent that it established a meritorious defense based on its ability to pay the taxes at issue ( see Jamaica Sav. Bank v. Sutton, 42 A.D.2d 856, 857; cf. Carr v. Decesare, 280 A.D.2d 852, 853; Abrahams, P.C. v. Peddlers Pond Holding Corp., 125 A.D.2d 355, 357).