Opinion
2016–12118 Index No. 13930/09
04-10-2019
US BANK NATIONAL ASSOCIATION, etc., respondent, v. Salma ASHRAF, appellant, et al., defendants.
Law Office of Maggio & Meyer, Bohemia, N.Y. (Holly C. Meyer of counsel), for appellant. Reed Smith LLP, New York, N.Y. (Zalika T. Pierre, Andrew B. Messite, and Jennifer Neuner of counsel), for respondent.
Law Office of Maggio & Meyer, Bohemia, N.Y. (Holly C. Meyer of counsel), for appellant.
Reed Smith LLP, New York, N.Y. (Zalika T. Pierre, Andrew B. Messite, and Jennifer Neuner of counsel), for respondent.
WILLIAM F. MASTRO, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this mortgage foreclosure action in April 2009 against Salma Ashraf (hereinafter the defendant), among others, alleging that she defaulted in making payments under a note secured by the subject mortgage. After the defendant failed to appear or answer the complaint, the plaintiff moved, inter alia, for an order of reference. The defendant opposed the motion and cross-moved pursuant to CPLR 3012(d) for leave to serve a late answer. The Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.
The plaintiff established its entitlement to an order of reference based on its submission of the mortgage, the unpaid note, the complaint and other evidence setting forth the facts establishing the claim, an affidavit of an individual authorized to act on its behalf attesting to the default on the note, and evidence that the defendant failed to answer within the time allowed (see RPAPL 1321 ; Citimortgage, Inc. v. Gill , 165 A.D.3d 623, 82 N.Y.S.3d 734 ; Household Fin. Realty Corp of N.Y. v. Adeosun–Ayegbusi , 156 A.D.3d 870, 65 N.Y.S.3d 761 ).
To successfully oppose a facially adequate motion for an order of reference based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action (see Aurora Loan Servs., LLC v. Movtady , 165 A.D.3d 1025, 1026–1027, 87 N.Y.S.3d 114 ). Since the defendant failed to demonstrate the existence of a reasonable excuse for her delay in answering the complaint (see Federal Natl. Mtge. Assn. v. Zapata , 143 A.D.3d 857, 858, 40 N.Y.S.3d 438 ), the Supreme Court was not required to determine whether the defendant presented a potentially meritorious defense, including failure to comply with RPAPL 1304 (see Aurora Loan Servs., LLC v. Movtady , 165 A.D.3d at 1027, 87 N.Y.S.3d 114 ; HSBC Bank USA, N.A. v. Daniels , 163 A.D.3d 639, 641, 81 N.Y.S.3d 584 ; EMC Mtge. Corp. v. Asturizaga , 150 A.D.3d 824, 826, 55 N.Y.S.3d 66 ; see also HSBC Bank USA, N.A. v. Hasis , 154 A.D.3d 832, 834, 62 N.Y.S.3d 467 ; U.S. Bank N.A. v. Carey , 137 A.D.3d 894, 896, 28 N.Y.S.3d 68 ; PHH Mtge. Corp. v. Celestin , 130 A.D.3d 703, 704, 11 N.Y.S.3d 871 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the plaintiff's motion which was for an order of reference and to deny the defendant's cross motion for leave to serve a late answer.
MASTRO, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.