| Tribeca Lending Corp. v Correa |
| 2012 NY Slip Op 01242 [92 AD3d 770] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Tribeca Lending Corporation, Appellant, v RosemaryCorrea, Respondent, et al., Defendants. |
—[*1] Law Offices of Robert E. Brown, P.C., New York, N.Y. (Nicholas M. Moccia of counsel),for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 3, 2010,as granted those branches of the motion of the defendant Rosemary Correa which were, in effect,pursuant to CPLR 5015 (a) (1) to vacate a judgment of foreclosure and sale of the same courtdated January 22, 2008, entered upon her default in appearing or answering the complaint, toestop the referee from transferring title to certain real property, and for leave to file and serve ananswer with counterclaims.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and those branches of the motion of the defendant Rosemary Correa whichwere, in effect, pursuant to CPLR 5015 (a) (1) to vacate the judgment of foreclosure and sale, toestop the referee from transferring title to certain real property, and for leave to file and serve ananswer with counterclaims are denied.
In order to prevail on that branch of her motion which was, in effect, to vacate the judgmentof foreclosure and sale entered upon her default in appearing or answering the complaint, thedefendant Rosemary Correa was required to demonstrate both a reasonable excuse for her defaultand the existence of a potentially meritorious defense to the action (see CPLR 5015 [a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see Swedbank, AB, N.Y. Branch v HaleAve. Borrower, LLC, 89 AD3d 922, 923-924 [2011]; Cohen v Romanoff, 83 AD3d 989[2011]). Correa failed to proffer any explanation for her default (see Maida v Lessing's Rest. Servs.,Inc., 80 AD3d 732 [2011]; Alterbaum v Shubert Org., Inc., 80 AD3d 635 [2011]; Abdul v Hirschfield, 71 AD3d 707[2010]), and the Supreme Court improvidently exercised its discretion in finding that herexplanation for delaying in making the motion was sufficient to constitute a reasonable excusefor her default in appearing or answering the complaint in the first instance (see Bank of Am. v Faracco, 89 AD3d879, 879-880 [2011]). In view of the lack of a reasonable excuse, it is unnecessary toconsider whether Correa sufficiently demonstrated the existence of a potentially meritoriousdefense to the action (see Maida v Lessing's Rest. Servs., Inc., 80 AD3d at 733; Abdul v Hirschfield, 71 AD3d 707[2010]).[*2]
Accordingly, those branches of Correa's motion whichwere to vacate the judgment of foreclosure and sale, to estop the referee from transferring title ofthe subject real property, and for leave to file and serve an answer with counterclaims shouldhave been denied. Mastro, A.P.J., Angiolillo, Eng and Cohen, JJ., concur.