| Matter of County of Livingston (Mort) |
| 2012 NY Slip Op 09234 [101 AD3d 1755] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of the Foreclosure of Tax Liens by Proceeding in RemPursuant to Article 11 Of the Real Property Tax Law by County of Livingston, Relating to the 2009Town and County Tax. County of Livingston, Appellant; Jeffrey Mort,Respondent. |
—[*1] Dibble & Miller, P.C., Rochester (G. Michael Miller of counsel), forrespondent-respondent.
Appeal from an order of the Supreme Court, Livingston County (Dennis S. Cohen, A.J.), enteredSeptember 26, 2011. The order granted respondent's motion to vacate a default judgment in a taxforeclosure proceeding.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to RPTL article 11, petitioner appeals from an ordergranting respondent's motion pursuant to RPTL 1131 to vacate the default judgment of foreclosure.Contrary to the contention of petitioner, we conclude that Supreme Court did not abuse its discretion ingranting the motion.
To establish an excusable default under CPLR 5015 (a) (1), the defaulting party must proffer areasonable excuse for the default as well as a meritorious defense to the action or proceeding (see Lauer v City of Buffalo, 53 AD3d213, 216-217 [2008]; Matter of ClintonCounty [Miner], 39 AD3d 1015, 1016 [2007]; Matter of Jefferson County, 295AD2d 934, 934 [2002]). "The determination whether an excuse is reasonable lies within the sounddiscretion of the motion court" (Lauer, 53 AD3d at 217). "In making [its] discretionarydetermination, the court should consider relevant factors, such as the extent of the delay, prejudice orlack of prejudice to the opposing party, whether there has been willfulness, and the strong public policyin favor of resolving cases on the merits" (Moore v Day, 55 AD3d 803, 804 [2008]; see Puchner v Nastke, 91 AD3d 1261,1262 [2012]; Kahn v Stamp, 52 AD2d 748, 749 [1976]).
Here, we conclude that the court did not abuse its discretion in determining that respondent had areasonable excuse for his default and a meritorious defense to the proceeding (see Lauer, 53AD3d at 217; see generally Solomon Abrahams, P. C. v Peddlers Pond Holding Corp., 125AD2d 355, 357 [1986]). Respondent moved to vacate the default judgment on July 22, 2011, [*2]just four days after the default judgment of foreclosure was entered.Although respondent failed to interpose an answer to the petition and notice of foreclosure, he averredthat, prior to the June 13, 2011 redemption date, he twice contacted petitioner to advise it of hissituation and that he intended to pay all taxes due. Notably, petitioner does not contend that it sufferedany prejudice attributable to respondent's delay, and we discern none on this record. Indeed, althoughthe default judgment ordered the transfer of title to petitioner, the record establishes that the propertyhad not yet been auctioned when respondent moved to vacate the default. Unlike the defaulting partiesin the cases cited by petitioner (see e.g. Katzv Marra, 74 AD3d 888, 891 [2010], appeal dismissed 15 NY3d 837 [2010]),respondent does not contend that he could not afford to pay his taxes. Rather, respondent averred thathe took steps to secure the necessary funds prior to the date of redemption, but that he did not receivethose funds until approximately one month after the redemption date.
In sum, " '[g]iven the brief overall delay, the promptness with which [respondent] moved to vacatethe judgment, the lack of any intention on [respondent's] part to abandon the [proceeding],[petitioner's] failure to demonstrate any prejudice attributable to the delay, and the preference forresolving disputes on the merits,' " we conclude that the court did not abuse its discretion in vacating thedefault judgment (Crandall v Wright WisnerDistrib. Corp., 59 AD3d 1059, 1060 [2009]). Present—Smith, J.P., Peradotto,Lindley, Valentino and Whalen, JJ.