| Deutsche Bank Natl. Trust Co. v Luden |
| 2012 NY Slip Op 00323 [91 AD3d 701] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Neil Luden et al., Appellants. |
—[*1] Cullen and Dykman, LLP, Garden City, N.Y. (Ariel E. Ronneburger of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Nassau County (Adams, J.), entered July 2, 2010, which denied their motion to vacate ajudgment of foreclosure and sale of the same court entered November 21, 2005, entered upontheir default in answering or appearing.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the defendants' motion to vacate the judgment of foreclosure and sale entered November 21,2005, entered upon their default in answering or appearing, is granted.
"A foreclosure action is equitable in nature and triggers the equitable powers of the court"(Mortgage Elec. Registration Sys., Inc. vHorkan, 68 AD3d 948, 948 [2009]; see Norstar Bank v Morabito, 201 AD2d545, 546 [1994]). Pursuant to CPLR 5015 (a), " '[t]he court which rendered a judgment or ordermay relieve a party from it upon such terms as may be just' " (Katz v Marra, 74 AD3d 888, 890 [2010], quoting CPLR 5015 [a];see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]). A defendant seekingto vacate a default in answering or appearing pursuant to CPLR 5015 (a) (1) must demonstrate areasonable excuse for the default and a potentially meritorious defense to the action (see Pursoo v Ngala-El, 89 AD3d712 [2011]; Citimortgage, Inc. vBrown, 83 AD3d 644, 645 [2011]). The court has the discretion to accept law officefailure as a reasonable excuse (see CPLR 2005; Kohn v Kohn, 86 AD3d 630 [2011]; Campbell-Jarvis v Alves, 68 AD3d701, 702 [2009]). Here, the detailed and uncontroverted affidavit of the defendant NeilLuden set forth a reasonable excuse for the defendants' default (see Papandrea v Acevedo, 54 AD3d915, 916 [2008]). He explained, inter alia, that he promptly retained legal counsel after beingserved with the summons and complaint, and that the attorney prepared an answer which thedefendants signed, but, unbeknownst to the defendants, the attorney failed to file and serve theanswer until some two months later resulting in the answer being returned as untimely by theplaintiff's counsel. Furthermore, the defendants demonstrated that they had a potentiallymeritorious defense based upon the defense of payment, as well as upon the purportedmisapplication of the defendants' payments by the loan servicer.
The plaintiff's remaining contentions either are without merit or have been rendered [*2]academic in light of our determination.
Accordingly, the Supreme Court improvidently exercised its discretion in denying thedefendants' motion to vacate the judgment of foreclosure and sale entered November 21, 2005,entered upon their default in answering or appearing in the action. Dillon, J.P., Dickerson, Engand Leventhal, JJ., concur.