| Bank of N.Y. Mellon v Izmirligil |
| 2011 NY Slip Op 07596 [88 AD3d 930] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Bank of New York Mellon, Formerly Known as The Bank of NewYork, as Trustee for Chase Mortgage Finance Trust Series 2006, Respondent, v ArifIzmirligil, Appellant, et al., Defendants. |
—[*1] Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Arif Izmirligil appeals from (1) an orderof the Supreme Court, Suffolk County (Whelan, J.), dated July 16, 2010, which denied hismotion, in effect, inter alia, to vacate his default in appearing or answering, and (2) an order ofthe same court dated September 22, 2010, which denied his motion for leave to renew andreargue that motion.
Ordered that the appeal from so much of the order dated September 22, 2010, as denied thatbranch of the motion which was for leave to reargue is denied, as no appeal lies from the denialof a motion for leave to reargue; and it is further,
Ordered that the order dated July 16, 2010, is affirmed; and it is further,
Ordered that the order dated September 22, 2010, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
"A defendant who has failed to appear or answer the complaint must provide a reasonableexcuse for the default and demonstrate a potentially meritorious defense to the action to avoid theentering of a default judgment or to extend the time to answer" (Wells Fargo Bank, N.A. v Cervini, 84AD3d 789, 789 [2011]; seeMaspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890 [2010]; Equicredit Corp. of Am. v Campbell,73 AD3d 1119, 1120 [2010]; Nascav Town of Brookhaven, 4 AD3d 462 [2004]; Khanna v Premium Food & SportsEnter., 279 AD2d 508, 509 [2001]). " 'The determination of what constitutes a reasonableexcuse lies within the sound discretion of the Supreme Court' " (Wells Fargo Bank, N.A. vCervini, 84 AD3d at 789, quoting Maspeth Fed. Sav. & Loan Assn. v McGown, 77AD3d at 890; see Star Indus., Inc. vInnovative Beverages, Inc., 55 AD3d 903, 904 [2008]; Antoine v Bee, 26 AD3d 306, 306[2006]).[*2]
Here, the defendant Arif Izmirligil (hereinafter thedefendant) failed to establish a reasonable excuse for his default. The Supreme Court providentlyexercised its discretion in rejecting the defendant's proffered excuse that he was engaged insettlement negotiations (see Kouzios vDery, 57 AD3d 949, 950 [2008]; Antoine v Bee, 26 AD3d at 306; Majestic Clothing Inc. v East Coast Stor.,LLC, 18 AD3d 516, 518 [2005]). Since the defendant failed to demonstrate a reasonableexcuse for his default, it is unnecessary to determine whether he demonstrated the existence of apotentially meritorious defense (see Wells Fargo Bank, N.A. v Cervini, 84 AD3d at 790;HSBC Bank USA, N.A. v Roldan,80 AD3d 566, 567 [2011]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3dat 890; Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d at 905).
" 'A motion for leave to renew shall be based upon new facts not offered on the prior motionthat would change the prior determination, and shall contain reasonable justification for thefailure to present such facts on the prior motion' " (Wells Fargo Bank, N.A. v Caro, 82 AD3d 880, 882 [2011], quotingMarrero v Crystal Nails, 77 AD3d798, 799 [2010]; see CountrywideHome Loans Servicing, LP v Albert, 78 AD3d 985, 986 [2010]; CPLR 2221 [e]). Here,the Supreme Court properly denied that branch of the defendant's motion which was for leave torenew, as the allegedly "new facts" offered would not have changed the prior determination(CPLR 2221 [e] [2]).
The defendant's remaining contention is not properly before this Court. Rivera, J.P., Florio,Dickerson and Lott, JJ., concur.