| JP Morgan Chase Bank, N.A. v Bruno |
| 2008 NY Slip Op 09918 [57 AD3d 362] |
| December 18, 2008 |
| Appellate Division, First Department |
| JP Morgan Chase Bank, N.A., Formerly Known as JP MorganChase Bank, Appellant, v Anna Bruno, Also Known as Anna Locicero-Bruno, et al.,Defendants, and Citibank, N.A., Respondent. |
—[*1] Mound Cotton Wollan & Greengrass, New York (Sara F. Lieberman of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered September28, 2007, which granted defendant Citibank's motion to vacate the judgment of foreclosure andsale entered against it on default and for leave to interpose an answer, unanimously reversed, onthe law, with costs, and the motion to vacate denied.
On August 25, 2006, plaintiff commenced this action to foreclose a mortgage given to it bydefendant Anna Bruno. The action was also commenced against Anna Bruno's husband, JosephBruno. While the mortgage listed only Anna Bruno as the mortgagor, plaintiff asserted causes ofaction for reformation to add Joseph Bruno as a mortgagor and for an equitable mortgage againsthim. Citibank, which held a money judgment against Joseph Bruno, was also named as adefendant. Plaintiff personally served Citibank's designated agent (see CPLR 318) onAugust 30, 2006; Citibank's deadline to answer was September 19, 2006 (see CPLR 320[a]). After Citibank failed to answer, plaintiff obtained summary judgment on its complaint, anda judgment of foreclosure and sale, dated April 30, 2007, was entered in the Bronx CountyClerk's Office on May 7, 2007.
By an order to show cause dated May 24, 2007, Citibank moved under CPLR 5015 to vacatethe judgment of foreclosure and sale. In support of the motion, Citibank submitted the affidavitof one of its assistant vice-presidents, who averred Citibank "only recently learned of this actionthrough the efforts of Day Pitney [i.e., Citibank's counsel], who advised Citibank of the actionafter an examination of court websites." The vice-president also averred that Day Pitney couldnot represent Citibank in this action because of a conflict of interest and that another firmCitibank sought to retain in this matter also had a conflict of interest that prevented the firm fromrepresenting Citibank. According to the vice-president, on or about April 20, 2007, Citibankretained a firm to represent it in this case. Citibank also submitted the affirmation of its counsel,who asserted that because only Anna Bruno was listed as a mortgagor, plaintiff "may enforce itsinterest, but only as to [her] interest in the Premises. Thus, [plaintiff's] lien does not [*2]encumber Joseph Bruno's rights to the Premises. [Plaintiff] is nowimproperly seeking to reform the mortgage to add Joseph Bruno as a mortgagor, which wasclearly intended to be given only by Anna Bruno. [Plaintiff] is not entitled to an equitable lien onthe entire premises because its rights were fixed at the time the mortgage was executed andcannot be enlarged to give [plaintiff] more rights th[a]n it is entitled to." Plaintiff opposed themotion, arguing that Citibank failed to demonstrate both a reasonable excuse for its default and apotentially meritorious defense. Supreme Court granted the motion without discussion oranalysis.
To vacate a judgment entered on a defendant's failure to answer the action, the defendantmust establish both a reasonable excuse for the default and a potentially meritorious defense (see e.g. Stillman v City of New York,39 AD3d 301 [2007]). Here, Citibank established neither. Plaintiff submitted an affidavit ofservice that stated that Citibank's designated agent was personally served with the summons andcomplaint on August 30, 2006. Citibank's vice-president stated that, "[w]hile there appears to bean affidavit of service, the persons responsible for this matter at Citibank only recently learned ofthis action through the efforts of [its former counsel], who advised Citibank of the action after anexamination of court websites." This statement does not provide any explanation for Citibank'sdefault, let alone a reasonable explanation. Moreover, no affidavit was submitted by Citibank'sdesignated agent who was personally served, "the persons responsible for this matter atCitibank," or Citibank's former counsel. While Citibank may have offered a reasonable excusefor its delay between February 2007 and May 2007 in moving to vacate its default due to theproblems it apparently encountered in retaining counsel, its failure to offer any excuse, let alone areasonable one, for its default in timely answering the action is fatal to its claim that the default isexcusable (see generally Okun vTanners, 11 NY3d 762 [2008]).
Additionally, Citibank failed to offer a potentially meritorious defense. Citibank'sperfunctory assertions that plaintiff cannot prevail under its cause of action for either reformationof the mortgage or an equitable mortgage against Joseph Bruno do not demonstrate anypotentially meritorious defense to the action (see Matter of CIT Group/Commercial Servs., Inc. v 160-09 Jamaica Ave.Ltd. Partnership, 25 AD3d 301, 302 [2006]; Fekete v Camp Skwere, 16 AD3d 544, 545 [2005]).Concur—Mazzarelli, J.P., Gonzalez, Catterson, McGuire and Acosta, JJ.