| Maspeth Fed. Sav. & Loan Assn. v McGown |
| 2010 NY Slip Op 07722 [77 AD3d 890] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Maspeth Federal Savings and Loan Association,Respondent, v James S. McGown, Appellant, et al.,Defendants. |
—[*1]
In an action to foreclose a mortgage, the defendant James S. McGown appeals from an orderof the Supreme Court, Kings County (Rothenberg, J.), dated February 13, 2009, which denied hismotion, inter alia, to vacate an order of the same court dated April 15, 2008, granting theplaintiff's motion for the appointment of a receiver of rents for real property located at 84 ClintonAvenue, Brooklyn, to vacate his default in appearing or answering the complaint pursuant toCPLR 5015 (a) (1), and to extend his time to serve an answer pursuant to CPLR 3012 (d).
Ordered that the order dated February 13, 2009, is affirmed, with costs.
The mortgage agreement at issue contains a provision which specifically authorizes theappointment of a receiver upon application by the mortgagee in any action to foreclose themortgage. Consequently, the plaintiff, as mortgagee, was entitled to the appointment of a receiverwithout notice and without regard to the adequacy of the security (see Real Property Law§ 254 [10]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999]; Febbraro vFebbraro, 70 AD2d 584, 585 [1979]). While a court of equity may vacate the appointment ofa receiver under appropriate circumstances (see Naar v Litwak & Co., 260 AD2d at 614;Clinton Capital Corp. v One Tiffany Place Devs., 112 AD2d 911 [1985]; Home Tit.Ins. Co. v Scherman Holding Corp., 240 App Div 851 [1933]), it was a provident exercise ofdiscretion under the circumstances of this case for the Supreme Court to deny that branch of themotion of the defendant James S. McGown which was to vacate the prior order appointing areceiver.
Moreover, "[a] defendant who has failed to timely appear or answer the complaint mustprovide a reasonable excuse for the default and demonstrate a meritorious defense to the action,when . . . moving to extend the time to answer or to compel the acceptance of anuntimely answer" (Lipp v Port Auth. ofN.Y. & N.J., 34 AD3d 649, 649 [2006]; see CPLR 3012 [d]; 5015 [a] [1]; Moriano v Provident N.Y. Bancorp, 71AD3d 747, 747 [2010]; 599 RalphAve. Dev., LLC v 799 Sterling Inc., 34 AD3d 726 [2006]). The determination of whatconstitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Star Indus., Inc. v InnovativeBeverages, Inc., 55 AD3d 903, 904 [2008]; Antoine v Bee, 26 AD3d 306[*2][2006]).
Here, McGown offered no reasonable excuse for his failure to serve a timely answer in theaction. His purported reliance upon alleged settlement negotiations is entirely unsubstantiatedand does not constitute a reasonable excuse (see Jamieson v Roman, 36 AD3d 861, 862 [2007]; Antoine vBee, 26 AD3d at 306; DeRisi v Santoro, 262 AD2d 270, 271 [1999]; Flora Co. vIngilis, 233 AD2d 418, 419 [1996]). Since McGown failed to offer a reasonable excuse, it isunnecessary to consider whether he sufficiently demonstrated the existence of a meritoriousdefense (see Levi v Levi, 46 AD3d519, 520 [2007]; Mjahdi vMaguire, 21 AD3d 1067, 1068 [2005]). Accordingly, those branches of McGown'smotion which were to vacate his default and extend his time to answer were properly denied.Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.