| Washington Mut. Bank v Fisette |
| 2009 NY Slip Op 07717 [66 AD3d 1287] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Washington Mutual Bank, Formerly Known as Washington MutualBank, FA., Respondent, v George Fisette, Appellant, et al.,Defendant. |
—[*1] Rosicki, Rosicki & Associates, Plainview (Owen M. Robinson of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Platkin, J.), entered June 18, 2008 inAlbany County, which denied defendant George Fisette's motion to vacate the judgment offoreclosure and sale of his real property.
Plaintiff holds a note secured by a mortgage on property owned by defendant George Fisette(hereinafter defendant). After defendant defaulted on the note, plaintiff commenced thisforeclosure action. Defendant's pro se answer denied information sufficient to respond to any ofplaintiff's allegations, and raised counterclaims. Plaintiff moved for summary judgment, to strikedefendant's answer and to appoint a referee to compute the amount owed to plaintiff. SupremeCourt (Hard, J.) granted plaintiff's motion, struck defendant's answer and appointed a referee.The referee then prepared a report that determined that defendant owed plaintiff $529,070.49.Plaintiff moved to confirm the report and for a judgment of foreclosure and sale. Defendant didnot respond to that motion. In December 2007, Supreme Court granted the motion, confirmed thereferee's report and entered a judgment of foreclosure and sale. Defendant then moved to vacatethat judgment, contending that he had no notice or opportunity to contest the referee's report.Supreme Court (Platkin, J.) denied that motion. Defendant appeals.[*2]
Supreme Court properly denied defendant's motion tovacate the December 2007 judgment. That judgment was granted on default after defendantfailed to respond to plaintiff's motion. As the party seeking to vacate a default judgment,defendant bore the burden of demonstrating a reasonable excuse for his default and a meritoriousdefense to the action (see Action Lawn & Landscaping v East Glenville Fire Dist., 254AD2d 585, 587 [1998]; Bonded Concrete v Audino, 244 AD2d 647, 648-649 [1997]).Here, plaintiff served defendant with its motion papers, including a copy of the referee'sreport.[FN*]Plaintiff presented the court with an affidavit of service, giving rise to a presumption of service(see Mortgage Elec. Registration Sys.,Inc. v Schuh, 48 AD3d 838, 841 [2008], appeal dismissed 10 NY3d 951[2008]). Defendant never denied receiving the motion papers nor offered an excuse for hisfailure to respond to the motion. As to the merits, while defendant argues that he was deprived ofan opportunity to contest the referee's figures and that the report contained errors, he failed tosubmit his own calculations or detail how the referee erred. Because defendant did notdemonstrate a reasonable excuse for his default nor a meritorious defense, the court did notabuse its discretion in refusing to vacate the default judgment (see Bonded Concrete vAudino, 244 AD2d at 649).
Peters, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the order is affirmed, with costs.
Footnote *: Defendant contends thatSupreme Court erred in granting that part of plaintiff's first motion which sought to havedefendant's answer "deemed an appearance in waiver of foreclosure." While it is unclear whetherthe court actually granted that part of the motion, we need not address the point, as plaintiff didprovide defendant with notice of its later motion which resulted in the December 2007 judgment.