| Bontempts v Aude Constr. Corp. |
| 2012 NY Slip Op 06274 [98 AD3d 1071] |
| September 26, 2012 |
| Appellate Division, Second Department |
| William Bontempts et al., Respondents, v AudeConstruction Corp., Appellant. |
—[*1] Stein, Wiener & Roth, LLP, Carle Place, N.Y. (Jonathan M. Cohen of counsel), forrespondents.
In an action, inter alia, to foreclose a mortgage, the defendant appeals from an order of theSupreme Court, Suffolk County (Rebolini, J.), dated November 30, 2010, which denied itsmotion, in effect, pursuant to CPLR 5015 (a) (1) and 317 to vacate an order of the same courtdated November 17, 2009, granting the plaintiff's motion pursuant to CPLR 3215 for leave toenter a default judgment against it.
Ordered that the order dated November 30, 2010, is affirmed, with costs.
To vacate a default in answering or appearing pursuant to CPLR 5015 (a) (1), a defendantmust demonstrate a reasonable excuse for the default and a potentially meritorious defense to theaction (see CPLR 5015 [a] [1]; US Bank N.A. v Stewart, 97 AD3d 740 [2012]; People's United Bank v Latini TuxedoMgt., LLC, 95 AD3d 1285 [2012]). Here, the Supreme Court properly concluded thatthe defendant, a corporation, which seeks to vacate its default in answering or appearing in thisaction, failed to establish a reasonable excuse for its default. Under the circumstances of thiscase, the defendant's failure to keep a current address on file with the Secretary of State did notconstitute a reasonable excuse for its failure to appear or answer the complaint (see Castle v Avanti, Ltd., 86 AD3d531 [2011]; Yellow Book of N.Y.,Inc. v Weiss, 44 AD3d 755, 756 [2007]; see generally Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]). Accordingly, the Supreme Court properlydenied that branch of the defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacateits default in answering or appearing (see Matter of Gustave-Francois v Francois, 88 AD3d 881 [2011];Matter of Proctor-Shields v Shields,74 AD3d 1347 [2010]).
The defendant also moved to vacate its default pursuant to CPLR 317, which does notrequire a reasonable excuse for a party's default (see Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630[2012]; Wassertheil v Elburg, LLC,94 AD3d 753 [2012]). Nonetheless, despite having shown that it did not receive actualnotice of the summons and complaint (see generally Eugene Di Lorenzo, Inc. v A.C. DuttonLbr. Co., 67 NY2d at 142), the defendant failed to demonstrate the existence of a potentiallymeritorious defense to the action, as is required under CPLR 317. Specifically, the [*2]defendant's proffered defense to the action, which sought, inter alia,to foreclose a mortgage given to secure a note, both of which were executed by the defendant,was that the terms of the note and the mortgage concerning the payment of principal and theaccrual of interest did not reflect the parties' prior oral agreement in that regard, and werefraudulently inserted into the documents by the drafting attorney before the defendant signed thedocument. "[E]vidence of what may have been agreed orally between the parties prior to theexecution of an integrated written instrument cannot be received to vary the terms of the writing"(Braten v Bankers Trust Co., 60 NY2d 155, 162 [1983]; see Gill v Bowne Global Solutions,Inc., 8 AD3d 339, 340 [2004]; Del Vecchio v Cohen, 288 AD2d 426, 427[2001]). Therefore, the defendant would not be permitted to submit proof at a trial that, pursuantto the alleged oral agreement, it was not required to make payment on the note, or that it was notliable for any interest accruing, prior to the occurrence of certain conditions, as this agreementwas not reflected in the written documents (see Braten v Bankers Trust Co., 60 NY2d at161-162; M & T Mtge. Corp. v Ethridge, 300 AD2d 286, 287 [2002]; North ForkBank & Trust Co. v Bernstein & Gershman, 201 AD2d 472, 472-473 [1994]).
Further, the defendant could not potentially establish a fraud defense because a "reading ofthe simple, straightforward document[s] would have readily advised" the defendant's president,an experienced real estate developer who signed the documents on the defendant's behalf, of therelevant terms of the note and the mortgage (Morby v Di Siena Assoc., 291 AD2d 604,605 [2002]). As such, the defendant could not potentially establish the justifiable reliancenecessary to prove fraud (see id.; Urstadt Biddle Props., Inc. v Excelsior Realty Corp., 65 AD3d1135, 1137 [2009]; Cash v TitanFin. Servs., Inc., 58 AD3d 785, 788 [2009]; Daniel Gale Assoc. v HillcrestEstates, 283 AD2d 386, 387 [2001]; Sofio v Hughes, 162 AD2d 518, 519 [1990]).Similarly, the defendant could not potentially demonstrate justifiable reliance because "[w]here,as here, there is a 'meaningful' conflict between an express provision in a written contract and aprior alleged oral representation, the conflict negates a claim of a reasonable reliance upon theoral representation" (Stone v Schulz, 231 AD2d 707, 707-708 [1996], quoting Bangov Naughton, 184 AD2d 961, 963 [1992]; see Urstadt Biddle Props., Inc. v ExcelsiorRealty Corp., 65 AD3d at 1137; OldClinton Corp. v 502 Old Country Rd., 5 AD3d 363 [2004]; Sulaiman Corp. v AsianAm. Food Corp., 285 AD2d 499, 500 [2001]). Accordingly, because the defendant failed todemonstrate the existence of a potentially meritorious defense to the action, it was not entitled tovacatur of its default in appearing or answering, pursuant to CPLR 317.
Therefore, the defendant's motion, in effect, pursuant to CPLR 5015 (a) (1) and 317 to vacatea prior order granting the plaintiff's motion pursuant to CPLR 3215 for leave to enter a defaultjudgment against it was properly denied. Skelos, J.P., Balkin, Leventhal and Cohen, JJ., concur.