| Kurlander v Willie |
| 2007 NY Slip Op 08330 [45 AD3d 1006] |
| November 8, 2007 |
| Appellate Division, Third Department |
| Steven H. Kurlander et al., Respondents, v Devon Willie,Appellant. James Carnell, Jr. et al., Respondents. |
—[*1] Kenneth C. Klein, Jeffersonville, for James Carnell Jr. and another, respondents.
Carpinello, J. Appeal from an order of the Supreme Court (Sackett, J.), entered October 26,2006 in Sullivan County, which, among other things, denied defendant's motion to vacate adefault judgment of foreclosure and sale.
Plaintiffs commenced the instant mortgage foreclosure action in May 2001 and personallyserved the summons and complaint on defendant at his residence. In July 2001, defendant wentto the office of plaintiffs' attorney and paid the unpaid principal balance on the loan. He obtaineda receipt marked "paid in full." Notwithstanding, it is alleged that defendant was orally informedat this time that the payment was for principal only. Thereafter, plaintiffs' attorney wrote severalletters to defendant explaining that interest on the recently-paid principal was still due and owingand that, in the event of nonpayment, the foreclosure action would continue. Defendant neverfiled an answer to the complaint and, ultimately, in June 2005, plaintiffs obtained a defaultjudgment of foreclosure and sale.
In July 2006, after the property had been sold at public auction, defendant obtained an orderto show cause seeking vacatur of the judgment claiming, among other things, that he had [*2]never been served, that he was nevertheless not in default and thatany claimed default was excusable and he had a meritorious defense. Supreme Court declined tovacate the judgment. Defendant appeals, and we now affirm.
With respect to the issue of service, the record contains an affidavit of personal service whichalone constitutes prima facie evidence of proper service (see U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 907-908[2005]). In support of his application, defendant alleges simply that he has "no recollection" ofhaving been so served. This vague allegation does not constitute the requisite "detailed andspecific contradiction of the allegations in the process server's affidavit" sufficient to create aquestion of fact on this issue (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344[2003]). To the extent that defendant argues that his payment of the unpaid principal balanceconstituted an "informal appearance" in the action such that he was entitled to notice of allsubsequent proceedings, we are unpersuaded. While courts have recognized the concept of"informal appearance," such cases have uniformly required meaningful participation in the meritsof the case as the basis for same (see e.g. USF&G v Maggiore, 299 AD2d 341, 342-343[2002]). Defendant's mere act of payment cannot be construed as a substantive appearance in theaction entitling him to notice of all further proceedings (see Olympia Mtge. Corp. v Ramirez, 9 AD3d 401 [2004]).
Having found no error in Supreme Court's determination that defendant was properly servedand that he failed to appear in the action, we next address whether Supreme Court erred infinding that his default was not excusable (see CPLR 5015 [a] [1]). The reasonablenessof a proffered excuse for a default is a matter within the discretion of the trial court (seeGagen v Kipany Prods., 289 AD2d 844, 845 [2001]). Here, we are unable to conclude thatSupreme Court abused its discretion in rejecting defendant's excuse. Even assuming that therewas some confusion on defendant's part as to whether his payment in July 2001 fully satisfied hisobligation on the mortgage, the letters sent by plaintiffs' attorney in the ensuing months wereunequivocal in their demand for unpaid interest. Moreover, they were mailed to defendant'sresidence at a time when a valid order was on file for the forwarding of all his mail to a particularpost office box he had obtained. Regarding his purported nonreceipt of these letters, he merelyalleges that he has "no knowledge" of whether he received same.
We have considered defendant's remaining arguments challenging Supreme Court's order andfind them to be without merit.
Cardona, P.J., Mercure, Crew III and Kane, JJ., concur. Ordered that the order is affirmed,with costs.