| Eastern Sav. Bank, FSB v Charles |
| 2013 NY Slip Op 00892 [103 AD3d 683] |
| February 13, 2013 |
| Appellate Division, Second Department |
| Eastern Savings Bank, FSB,Respondent, v Hermite Charles et al., Appellants, et al.,Defendants. |
—[*1] Kriss & Feuerstein, LLP, New York, N.Y. (Jerold C. Feuerstein, Jennifer A. Tolston,and Kristine L. Grinberg of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Hermite Charles and EvelynThenor appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Sweeney, J.), dated December 12, 2011, as denied that branch of theirmotion which was to vacate an amended order of the same court (Jackson, J.), datedDecember 9, 2010, denying their motion to vacate, inter alia, a judgment of foreclosureand sale dated September 8, 2009, entered upon their failure to appear at a hearing todetermine the validity of service of process.
Ordered that the order dated December 12, 2011, is affirmed insofar as appealedfrom, with costs.
To vacate an order entered upon their failure to appear at the hearing to determinethe validity of service of process, the appellants were required to demonstrate both areasonable excuse for their default and the existence of a potentially meritorious positionat the hearing (see CPLR 5015 [a] [1]; Cohen v Romanoff, 83 AD3d 989 [2011]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]). The determination of what constitutes areasonable excuse for a default lies within the sound discretion of the Supreme Court (see Glukhman v Bay 49th St.Condominium, LLC, 100 AD3d 594, 595 [2012]). "Although a court has thediscretion to accept law office failure as a reasonable excuse (see CPLR 2005), aconclusory, undetailed, and uncorroborated claim of law office failure does not amountto a reasonable excuse" (Whitev Daimler Chrysler Corp., 44 AD3d 651, 651 [2007]; see Matter of ELRAC, Inc. vHolder, 31 AD3d 636, 636-637 [2006]).
Here, the appellants' claim of law office failure was unsubstantiated and, under thecircumstances presented, did not constitute a reasonable excuse for their default (see Wei Hong Hu v Sadiqi, 83AD3d 820, 822 [2011]; Spatz v Bajramoski, 214 AD2d 436 [1995]).Accordingly, the Supreme Court providently exercised its discretion in denying thatbranch of the appellants' motion which was to vacate the order entered upon their failureto appear at the hearing. Rivera, J.P., Lott, Roman and Sgroi, JJ., concur.