Opinion
10-06-2017
PNC BANK, NATIONAL ASSOCIATION, Plaintiff–Respondent, v. Marseena HARMONSON, Defendant–Appellant, et al., Defendant.
Degnan Law Office, Canisteo (Andrew Roby of Counsel), for Defendant–Appellant. LeClairRyan, A Professional Corporation, Rochester (Christina L. Shifton of Counsel), for Plaintiff–Respondent.
Degnan Law Office, Canisteo (Andrew Roby of Counsel), for Defendant–Appellant.
LeClairRyan, A Professional Corporation, Rochester (Christina L. Shifton of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND WINSLOW, JJ.
MEMORANDUM: Plaintiff commenced this foreclosure action after Marseena Harmonson (defendant) defaulted on a note and mortgage. Defendant served plaintiff with an answer 8 ½ months later, accompanied by a letter acknowledging the answer's untimeliness. Plaintiff refused service and filed a notice of return, and then moved for a default judgment against defendant and for an order of reference. Defendant filed a cross motion seeking, inter alia, dismissal of the complaint on various grounds or leave to file a late answer. Defendant filed a second cross motion later that same month seeking a declaration that, inter alia, a prior assignment of the note and mortgage is void, as well as seeking dismissal of the complaint on additional grounds not stated in her first cross motion. Supreme Court granted plaintiff's motion and denied defendant's cross motions. We affirm.
Plaintiff established its entitlement to a default judgment and an order of reference through proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of defendant's failure to answer (see CPLR 3215[f] ; HSBC Bank USA, N.A. v. Clayton [appeal No. 2], 146 A.D.3d 942, 944, 45 N.Y.S.3d 543 ).
Contrary to defendant's contention, the court properly denied her application seeking leave to file a late answer inasmuch as defendant failed to offer the court a reasonable excuse for her default (see Morgan Stanley Mtge. Loan Trust 2006–17XS v. Waldman, 131 A.D.3d 1140, 1140–1141, 16 N.Y.S.3d 331 ; see also CPLR 3012[d] ). In light of that failure, we need not consider whether defendant established a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Dysinger, 149 A.D.3d 1551, 1552, 52 N.Y.S.3d 788 ; Morgan Stanley Mtge. Loan Trust 2006–17XS, 131 A.D.3d at 1141, 16 N.Y.S.3d 331 ). Defendant's contention that her participation in settlement discussions constitutes a reasonable excuse for her default is raised for the first time on appeal, and thus it is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 ). Moreover, defendant's participation in settlement discussions is not a fact supported by the record and, in any event, such participation does not constitute a reasonable excuse for her default (see Federal Natl. Mtge. Assn. v. Zapata, 143 A.D.3d 857, 858, 40 N.Y.S.3d 438 ; US Bank, N.A. v. Samuel, 138 A.D.3d 1105, 1106–1107, 30 N.Y.S.3d 305 ).
We have examined defendant's remaining contention and conclude that it lacks merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.