| Bank of Am. v Faracco |
| 2011 NY Slip Op 08313 [89 AD3d 879] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Bank of America, as Successor by Merger to LaSalle Bank, as Trusteeunder the Pooling and Servicing Agreement Dated December 1, 2006, GSAMP Trust,Respondent, v John Faracco et al., Defendants, and WilliamWeinberg, Appellant. |
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Thomas G. Sherwood, LLC, Garden City, N.Y., and Stevens & Lee, P.C., New York, N.Y.(Bradley L. Mitchell of counsel), for respondent (one brief filed).
In an action, inter alia, to foreclose a mortgage, the defendant William Weinberg appeals from anorder of the Supreme Court, Suffolk County (Farneti, J.), dated May 28, 2010, which denied hismotion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate a judgment of foreclosure and sale of thesame court dated August 14, 2009, entered upon his default in appearing or answering the complaint,and upon his failure to oppose the plaintiff's motion for the execution of a judgment of foreclosure andsale.
Ordered that the order is affirmed, with costs.
In order to prevail on his motion to vacate the judgment of foreclosure and sale entered, in part,upon his default, the defendant William Weinberg was required to demonstrate both a reasonableexcuse for his default in appearing or answering the complaint and the existence of a potentiallymeritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Cohen v Romanoff, 83 AD3d 989 [2011]). Weinberg proffered anexcuse for his failure to oppose the motion for the execution of a judgment of foreclosure and sale, butnot for his failure to appear or answer the complaint in the first instance (see Lane v Smith, 84 AD3d 746, 748[2011]; Maida v Lessing's Rest. Servs.,Inc., 80 AD3d 732, 733 [2011]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890[2010]; Abdul v Hirschfield, 71 AD3d707, 709 [2010]; Trotman v Aya Cab Corp., 300 AD2d 573 [2002]). Accordingly, theSupreme Court did not improvidently exercise its discretion in denying that branch of Weinberg'smotion which was pursuant to CPLR 5015 (a) (1) to vacate the judgment of foreclosure and sale.Moreover, in view of Weinberg's lack of a reasonable excuse for failing to appear or answer thecomplaint, it is unnecessary for us to consider whether Weinberg sufficiently demonstrated the existenceof a potentially meritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d1143, 1144 [2007]; Mjahdi vMaguire, 21 AD3d 1067, 1068 [2005]).
Weinberg's remaining contentions are either without merit or not properly before this Court.Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur. [Prior Case History: 2010 NY Slip Op31439(U).]