Opinion
2017–10294 Index No. 8689/15
08-05-2020
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Eulah MOULTRIE, etc., Appellant, et al., Defendants.
Charles A. Termini, Oceanside, NY, for appellant. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bayshore, NY, for respondent.
Charles A. Termini, Oceanside, NY, for appellant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bayshore, NY, for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Eulah Moultrie appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered July 31, 2017. The order denied that defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court entered November 3, 2016, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant.
ORDERED that the order entered July 31, 2017, is affirmed, with costs.
In 2015, the plaintiff commenced this action against, among others, the defendant Eulah Moultrie (hereinafter the defendant) to foreclose a mortgage on certain property located in Inwood. In August 2016, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. By stipulation, the parties agreed that the defendant would submit opposition to the plaintiff's motion "no later than October 1, 2016." The defendant failed to oppose the plaintiff's motion by that date. In an order entered November 3, 2016, the Supreme Court granted the plaintiff's unopposed motion (hereinafter the November 2016 order). The defendant subsequently moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the November 2016 order. The court denied the defendant's motion. The defendant appeals.
A party seeking to vacate an order entered upon his or her default in opposing a motion for summary judgment must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Nationstar Mtge., LLC v. Sobel , 179 A.D.3d 710, 711, 113 N.Y.S.3d 560 ; Santos v. Penske Truck Leasing Co. , 105 A.D.3d 1029, 964 N.Y.S.2d 207 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" ( Deutsche Bank Natl. Trust Co. v. Saketos , 158 A.D.3d 610, 612, 72 N.Y.S.3d 167 [internal quotation marks omitted] ). "While ‘law office failure’ may under certain circumstances constitute a reasonable excuse for a default and thus justify the vacatur of a prior determination of the court, there must be detailed allegations of fact which explain the reason for such a failure" ( Morris v. Metropolitan Transp. Auth. , 191 A.D.2d 682, 683, 595 N.Y.S.2d 539 ; see Nationstar Mtge., LLC v. Sobel , 179 A.D.3d at 711, 113 N.Y.S.3d 560 ).
Here, the Supreme Court providently exercised its discretion in denying the defendant's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the November 2016 order. The defendant's unsubstantiated and conclusory assertions were insufficient to demonstrate a reasonable excuse for his default in opposing the plaintiff's motion (see Strunk v. Revenge Cab Corp. , 98 A.D.3d 1029, 1030, 950 N.Y.S.2d 595 ). In light of the defendant's failure to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion (see HSBC Bank USA, N.A. v. Coronel , 174 A.D.3d 689, 102 N.Y.S.3d 459 ; Nationstar Mtge., LLC v. Ramnarine , 172 A.D.3d 886, 887, 100 N.Y.S.3d 278 ).
RIVERA, J.P., CHAMBERS, IANNACCI and WOOTEN, JJ., concur.