Wells Fargo Bank v Malave

2013 NY Slip Op 04595 [107 AD3d 880]

June 19, 2013

Appellate Division, Second Department

As corrected through Wednesday, July 31, 2013

Wells Fargo Bank, Respondent, v Josue Malave etal., Defendants, and Janet Morales et al., Appellants.

—[*1]Bruce Richardson, New York, N.Y. (Bruce Richardson of counsel), forappellants.

Reed Smith, New York, N.Y. (Andrew B. Messite and Joseph B. Teig of counsel),for respondent.

In an action to foreclose a mortgage, the defendants Janet Morales and Luis Moralesappeal from an order of the Supreme Court, Kings County (Bayne, J.), dated April 8,2011, which denied their motion to vacate a judgment of foreclosure and sale of the samecourt dated January 30, 2007, entered upon their default in appearing or answering thecomplaint, to set aside the foreclosure sale of the subject property, and to dismiss thecomplaint for lack of standing.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied that branch of the appellants' motion which wasto vacate the judgment of foreclosure and sale dated January 30, 2007, which wasentered upon their default in appearing or answering the complaint. A defendant seekingto vacate a default in appearing or answering must demonstrate a reasonable excuse forthe default and a potentially meritorious defense to the action (see CPLR 5015[a] [1]; US Bank N.A. vStewart, 97 AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701,701 [2012]; Fremont Inv. &Loan v Bertram, 90 AD3d 988 [2011]; Citimortgage, Inc. v Brown, 83 AD3d 644, 645 [2011]).Here, the appellants failed to demonstrate a reasonable excuse for their default, and,therefore, it is unnecessary to determine whether they demonstrated the existence of apotentially meritorious defense (see U.S. Bank N.A. v Stewart, 97 AD3d 740 [2012]; Tribeca Lending Corp. vCorrea, 92 AD3d 770, 771 [2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).As a result, those branches of the appellants' motion which were to set aside theforeclosure sale of the subject property and to dismiss the action for lack of standingwere also properly denied. Skelos, J.P., Leventhal, Chambers and Lott, JJ., concur.