Summary
affirming the denial of Plaintiff's motion to vacate a judgment of foreclosure and sale
Summary of this case from Ramnarine v. Nationstar Mortg., LLCOpinion
2017–08353 Publish judicial.artifact.sch using xsl.(Index No. 24324/09)
05-08-2019
NATIONSTAR MORTGAGE, LLC, Respondent, v. Ryan RAMNARINE, Appellant, et al., Defendants.
Carl E. Person, New York, NY, for appellant. Sandelands Eyet LLP, New York, N.Y. (Peter A. Swift of counsel), for respondent.
Carl E. Person, New York, NY, for appellant.
Sandelands Eyet LLP, New York, N.Y. (Peter A. Swift of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Ryan Ramnarine appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated April 21, 2017. The order denied his motion, inter alia, pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale.
ORDERED that the order is affirmed, with costs.
On December 29, 2005, the defendant Ryan Ramnarine (hereinafter the defendant) executed a promissory note in the amount of $ 449,440, which was secured by a mortgage on residential property located in Queens. The defendant defaulted on the loan by failing to make the monthly installment payment due on November 1, 2008, or any payments thereafter.
In 2009, the plaintiff commenced this action against the defendant and others to foreclose the mortgage. The defendant interposed an answer. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. The defendant failed to oppose the plaintiff's motion and the motion was granted. The plaintiff then moved for a judgment of foreclosure and sale. The motion was granted without opposition, and a judgment of foreclosure and sale was entered. In 2016, the defendant moved, inter alia, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale. By order dated April 21, 2017, the Supreme Court denied the motion, and the defendant appeals.
In order to vacate a default in opposing a motion, the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; New Century Mtge. Corp. v. Chimmiri , 146 A.D.3d 893, 894, 45 N.Y.S.3d 209 ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Hudson City Sav. Bank v. Bomba , 149 A.D.3d 704, 705, 51 N.Y.S.3d 570 ). "A party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and unsubstantiated allegations of law office failure are not sufficient" ( LaSalle Bank, N.A. v. LoRusso , 155 A.D.3d 706, 707, 64 N.Y.S.3d 102 [internal quotation marks omitted] ). Here, in proffering the excuse of law office failure, the defendant submitted his own affidavit and an affidavit of his mother, both stating that they received no communication from the defendant's former attorney after he was retained in 2009, and that they did not know that the former attorney never opposed the plaintiff's motions. No documentation supporting the defendant's claims was submitted. The defendant's conclusory and unsubstantiated claim of law office failure does not establish a reasonable excuse for his default (see LaSalle Bank, N.A. v. LoRusso , 155 A.D.3d at 707, 64 N.Y.S.3d 102 ; U.S. Bank N.A. v. Barr , 139 A.D.3d 937, 938, 30 N.Y.S.3d 576 ; M & T Bank v. Morris , 138 A.D.3d 939, 939, 28 N.Y.S.3d 623 ; Archer Capital Fund, L.P. v. GEL, LLC , 95 A.D.3d 800, 801, 944 N.Y.S.2d 179 ; Wells Fargo Bank, N.A. v. Cervini , 84 A.D.3d 789, 790, 921 N.Y.S.2d 643 ).
Since the defendant failed to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion, including the plaintiff's alleged failure to satisfy the requirements of RPAPL 1304 (see HSBC Bank USA, N.A. v. Daniels , 163 A.D.3d 639, 641, 81 N.Y.S.3d 584 ; Hudson City Sav. Bank v. Bomba , 149 A.D.3d at 705, 51 N.Y.S.3d 570 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., COHEN, HINDS–RADIX and MALTESE, JJ., concur.