| Wells Fargo Bank, N.A. v Russell |
| 2012 NY Slip Op 08514 [101 AD3d 860] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., as Trustee under Pooling and ServicingAgreement Dated as of August 1, 2005 Asset-Backed Pass-Through Certificates Series2005-WHQ4, Respondent, v Oswald Russell, Appellant, et al.,Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Oswald Russell appeals from an order ofthe Supreme Court, Queens County (Agate, J.), dated August 25, 2011, which denied his motionfor leave to renew his prior motion pursuant to CPLR 5015 to vacate a judgment of foreclosureand sale of the same court entered July 22, 2010, upon his default in appearing or answering thecomplaint, and to extend his time to appear and answer.
Ordered that the order is affirmed, with costs.
In this action to foreclose a mortgage, the defendant Oswald Russell defaulted in appearingand answering the complaint. Eventually, the plaintiff moved for a judgment of foreclosure andsale, and the Supreme Court granted the motion, without opposition. Subsequently, Russellmoved to vacate his default and extend his time to appear and answer. The Supreme Court heldthat Russell had failed to establish a reasonable excuse for his default, and it denied his motionwithout considering whether he had demonstrated the existence of a potentially meritoriousdefense to the action. Russell did not take an appeal from the order denying his motion, butinstead moved for leave to renew his motion. In support of his motion for leave to renew, Russellalleged, among other possible defenses, that the plaintiff lacked standing to commence the actionand that it had obtained the judgment by fraud. The Supreme Court denied Russell's motion forleave to renew, and Russell appeals.
"A motion for leave to renew must (1) be based upon new facts not offered on a prior motionthat would change the prior determination, and (2) set forth a reasonable justification for thefailure to present such facts on the prior motion" (Swedish v Beizer, 51 AD3d 1008, 1010 [2008], quoting Ellner v Schwed, 48 AD3d 739,740 [2008]; see CPLR 2221 [e]; Yerushalmi v Yerushalmi, 82 AD3d 1217, 1217 [2011]).
A defendant who seeks to vacate a default in appearing or answering must provide areasonable excuse for the default and show a potentially meritorious defense (see U.S. Bank N.A. v Stewart, 97AD3d 740, 740 [2012]; DeutscheBank Natl. Trust Co. v Rudman, 80 AD3d 651, 652 [2011]; [*2]Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d889, 890 [2010]). The Supreme Court denied Russell's motion to vacate his default on theground that he had failed to provide a reasonable excuse for his default. Upon moving for leaveto renew, Russell did not submit new facts that would cure that deficiency. Consequently,whatever the possible merit of the potentially meritorious defenses he offered in support of hismotion for leave to renew (see Bank ofN.Y. v Silverberg, 86 AD3d 274, 279 [2011]; but cf. HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]),those contentions would not have changed the original determination. Accordingly, the SupremeCourt properly denied Russell's motion for leave to renew (see Reich v Redley, 96 AD3d 1038, 1039 [2012]).
Russell's remaining contentions are without merit or need not be addressed in light of ourdetermination. Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur.