| U.S. Bank N.A. v Stewart |
| 2012 NY Slip Op 05626 [97 AD3d 740] |
| July 18, 2012 |
| Appellate Division, Second Department |
| U.S. Bank National Association, as Trustee Relating to J.P. MorganMortgage Acquisition Corp. 2005-FRE1 Asset-Backed Pass-Through Certificates Series2005-FRE1, Respondent, v Andrew Stewart et al.,Appellants. |
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In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Nassau County (Adams, J.), dated July 27, 2010, which denied their motion, inter alia, tovacate a judgment of foreclosure and sale dated September 7, 2007, entered upon their default inappearing or answering, and a stipulation of settlement dated December 4, 2008.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court properly denied that branch of the defendants' motion which was tovacate the judgment of foreclosure and sale dated September 7, 2007, entered upon their defaultin appearing or answering the complaint. A defendant seeking to vacate a default in appearing oranswering must demonstrate a reasonable excuse for the default and a potentially meritoriousdefense to the action (see CPLR 5015 [a] [1]; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701, 701 [2012];Fremont Inv. & Loan v Bertram, 90AD3d 988 [2011]; Citimortgage,Inc. v Brown, 83 AD3d 644, 645 [2011]). Here, while the defendants initially allegedthat copies of the summons and complaint were improperly served upon them, pursuant to astipulation resolving that issue made in open court on December 4, 2008, they subsequentlyacknowledged proper service. Since the defendants failed to demonstrate a reasonable excuse fortheir default, it was unnecessary to determine whether they demonstrated the existence of apotentially meritorious defense (seeTribeca Lending Corp. v Correa, 92 AD3d 770, 771 [2012]; Wells Fargo Bank, N.A. v Cervini, 84AD3d 789, 790 [2011]).
Contrary to the defendants' contention, the Supreme Court also properly denied that branchof their motion which sought to vacate the stipulation of settlement (see Reid v C & S Realty Mgt., LLC, 94AD3d 732 [2012]; see generally Hallock v State of New York, 64 NY2d 224, 230[1984]).
The defendants' remaining contentions are without merit. Rivera, J.P., Eng, Lott and Cohen,JJ., concur.