| Christiana Bank & Trust Co. v Eichler |
| 2012 NY Slip Op 02534 [94 AD3d 1170] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Christiana Bank & Trust Company, as Owner Trustee for SecurityNational Asset Securitization Series Trust II, Respondent, v Daniel W. Eichler et al., Appellants,et al., Defendants. |
—[*1] Law Offices of Knuckles, Komosinski & Elliot, L.L.P., Elmsford (D. Johnathan Rhodebackof counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Dowd, J.), entered December 15, 2010in Chenango County, which denied a motion by defendants Daniel W. Eichler and Carol N.Eichler to, among other things, vacate a default judgment of foreclosure.
Plaintiff commenced this foreclosure action in 2005, alleging that defendants Daniel W.Eichler and Carol N. Eichler (hereinafter collectively referred to as defendants) had failed tomake any payments since March 2003 on a mortgage that they executed in 2000. Afterdefendants failed to answer, a default judgment of foreclosure was entered against them inAugust 2005. Eleven days later, defendants filed for bankruptcy and their case was not closeduntil April 2010. The referee then deeded the property to plaintiff in August 2010 and, five dayslater, defendants moved to vacate the default judgment and for leave to file a late answer.Supreme Court denied the motion and defendants appeal.
Defendants contend that issues of fact exist regarding whether they were properly served[*2]with the pleadings. While we certainly agree that relief from ajudgment may be granted where the court lacked jurisdiction to render it (see CPLR 5015[a] [4]), defendants failed to adequately rebut the presumption of proper service created by theaffidavits of service (see Owens vFreeman, 65 AD3d 731, 733 [2009], lv dismissed 13 NY3d 855 [2009]; Mortgage Elec. Registration Sys., Inc. vSchuh, 48 AD3d 838, 841 [2008], appeal dismissed 10 NY3d 951 [2008]).Those affidavits reflect that two copies of the summons and complaint were left with defendants'22-year-old daughter at their residence and mailed two days later to the same address (seeCPLR 308 [2]). Defendants do not deny that their daughter was served or that the proper addressis listed in the affidavits. Their bare claim that they did not receive the pleadings is not a "'detailed and specific contradiction of the allegations in the process server's affidavit' sufficient tocreate a question of fact warranting a hearing" (U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908 [2005],quoting Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]; see Scarano v Scarano, 63 AD3d716, 716-717 [2009]).
Further, although defendants allege in a very general way that they were unaware that thejudgment had been entered against them, they have not denied receipt of the notice of entry of thejudgment of foreclosure which immediately preceded their bankruptcy filing, and they admit thatthey were aware of the Bankruptcy Court's 2006 order permitting plaintiff to remove its claimand continue its foreclosure action. Under these circumstances, Supreme Court properlyexercised its discretion by rejecting defendants' claim that they were unaware of the foreclosureaction until August 2010 and finding that they failed to offer a reasonable excuse for thefour-year delay in moving to vacate the default judgment (see CPLR 317, 5015 [a] [1];Washington Mut. Bank v Fisette, 66AD3d 1287, 1288 [2009]; F & KSupply, Inc. v Shean, 56 AD3d 1076, 1077-1078 [2008]; Personnel Sys. Intl. vClifford R. Gray, Inc., 146 AD2d 831, 833 [1989]). The absence of a reasonable excuse alsosupports the exercise of the court's discretion in denying defendants permission to file a lateanswer pursuant to CPLR 3012 (d) (seeWells Fargo Bank, N.A. v Wine, 90 AD3d 1216, 1218 [2011]). We have considereddefendants' remaining contentions, including their conclusory and unsupported claims that theaccounting was in error and that they were not in default, and find them to be without merit.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.