Opinion
2017–12976 Index No. 16408/09
06-22-2022
WELLS FARGO BANK, N.A., respondent, v. Josue ELIACIN, et al., appellants, et al., defendants.
The Law Office of Alexander Paykin, P.C., New York, NY (Eliyahu Kaploun of counsel), for appellants. Goodwin Proctor LLP, New York, NY (Allison J. Schoenthal and Leah Edmunds of counsel), for respondent.
The Law Office of Alexander Paykin, P.C., New York, NY (Eliyahu Kaploun of counsel), for appellants.
Goodwin Proctor LLP, New York, NY (Allison J. Schoenthal and Leah Edmunds of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Josue Eliacin and Marie Cantave appeal from an order of the Supreme Court, Kings County (Donald Scott Kurtz, J.), dated September 5, 2017. The order, insofar as appealed from, denied those defendants’ motion pursuant to CPLR 5015(a)(1) and (4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court dated April 12, 2016, and thereupon pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, or in the alternative, for leave to serve a late answer.
ORDERED that the order dated September 5, 2017, is affirmed insofar as appealed from, with costs.
The plaintiff alleged in the complaint that in May 2006, the defendants Josue Eliacin and Marie Cantave (hereinafter together the defendants) executed a note in the amount of $674,650, which was secured by a mortgage on the subject property. The plaintiff further alleged that the defendants failed to make the payment due in January 2009 or any subsequent payments. In July 2009, the plaintiff commenced this foreclosure action against, among others, the defendants. In June 2014, the defendants served their answer. The plaintiff rejected the answer as untimely. Thereafter, the Supreme Court entered an order of reference dated July 16, 2015. In or around December 2015, the defendants served a second answer. The plaintiff rejected this answer as untimely. The court issued an order and judgment of foreclosure and sale dated April 12, 2016. Subsequently, in or around August 2016, the defendants moved pursuant to CPLR 5015(a)(1) and (4) to vacate the order and judgment of foreclosure and sale, and thereupon pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and lack of standing, or in the alternative, for leave to serve a late answer. The court, among other things, denied the defendants’ motion. The defendants appeal.
"When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4) and also seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" ( Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 1047, 16 N.Y.S.3d 819 ; see TBF Fin., LLC v. Eagle Tours, LLC, 172 A.D.3d 1269, 1269, 101 N.Y.S.3d 365 ; 92–18 149th St. Realty Corp. v. Stolzberg, 152 A.D.3d 560, 562, 58 N.Y.S.3d 544 ; HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862–863, 27 N.Y.S.3d 192 ). Here, the defendants contend that they were not properly served with the summons and complaint. However, the defendants waived any objection based on lack of personal jurisdiction by failing to move to dismiss the complaint on this ground at the time their counsel filed a notice of appearance in the action or to serve an answer which raised this jurisdictional objection (see Mid–Island Mtge. Corp. v. Johnson, 175 A.D.3d 490, 491–492, 107 N.Y.S.3d 63 ).
A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d 784, 785–786, 150 N.Y.S.3d 600 ; LaSalle Bank N.A. v. Calle, 153 A.D.3d 801, 802, 61 N.Y.S.3d 104 ). Law office failure may be accepted as a reasonable excuse in the exercise of the court's sound discretion (see Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d 772, 774, 111 N.Y.S.3d 94 ), and a defendant may establish "a reasonable excuse for his [or her] default based upon his [or her] attorney's failure to respond to the summons and complaint" ( JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d 1048, 1049, 996 N.Y.S.2d 68 ; see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d at 786, 150 N.Y.S.3d 600 ). "Nevertheless, [w]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse" ( Maruf v. E.B. Mgt. Props., LLC, 181 A.D.3d 670, 671–672, 121 N.Y.S.3d 282 [internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d at 786, 150 N.Y.S.3d 600 ). "[A] conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse" ( Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d at 774, 111 N.Y.S.3d 94 [internal quotation marks omitted]; see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d at 786, 150 N.Y.S.3d 600 ).
Here, in support of their motion, the defendants submitted affidavits in which they asserted that their default was caused, in part, by the negligence of their prior attorney, who, without their knowledge, failed to timely serve an answer or oppose the foreclosure action. The "conclusory and unsubstantiated" allegations in their affidavits were insufficient to amount to a reasonable excuse ( Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d at 786, 150 N.Y.S.3d 600 [internal quotation marks omitted]; see Wright v. Brooklyn Renaissance Funding Co., LLC, 174 A.D.3d 676, 676–677, 102 N.Y.S.3d 433 ).
The defendants further assert that they had a reasonable excuse for their default because they participated in mandatory settlement conferences and submitted documentation in an attempt to secure a loan modification (cf. Armstrong Trading, Ltd. v. MBM Enters., 29 A.D.3d 835, 836, 815 N.Y.S.2d 689 ). However, without more, the defendants’ claims do not constitute a reasonable excuse for their failure to answer or move within the applicable period (see Cumanet, LLC v. Murad, 188 A.D.3d 1149, 1153, 137 N.Y.S.3d 412 ).
Since the defendants failed to demonstrate a reasonable excuse for the default, it is unnecessary to determine whether they established a potentially meritorious defense (see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d at 786–787, 150 N.Y.S.3d 600 ; JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d at 1049, 996 N.Y.S.2d 68 ). Relatedly, since the order and judgment of foreclosure and sale was entered upon the defendants’ default and the defendants have failed to establish any grounds for relief from that judgment, the Supreme Court properly denied that branch of their motion which was to dismiss the complaint insofar as asserted against them (see HSBC Bank USA, N.A. v. Perry, 178 A.D.3d 685, 686, 113 N.Y.S.3d 247 ; Holubar v. Holubar, 89 A.D.3d 802, 802, 934 N.Y.S.2d 710 ).
CHAMBERS, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.