| Madison Acquisition Group, LLC v 7614 Fourth Real EstateDev., LLC |
| 2013 NY Slip Op 07713 [111 AD3d 800] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Madison Acquisition Group, LLC,Appellant, v 7614 Fourth Real Estate Development, LLC, et al., Defendants, andMousa Khalil, Respondent. |
—[*1] Campolo, Middleton & McCormick, LLP, Bohemia, N.Y. (Patrick McCormick andJeffrey Basso of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Lewis, J.), dated November 9, 2012, which granted themotion of the defendant Mousa Khalil pursuant to CPLR 5015 (a) to vacate a judgmentof foreclosure and sale of the same court dated January 17, 2012, entered upon hisdefault in answering the complaint.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the motion is denied.
"A defendant seeking to vacate a default in appearing or answering must demonstratea reasonable excuse for the default and a potentially meritorious defense to the action"(Wells Fargo Bank vMalave, 107 AD3d 880, 880-881 [2013]; see CPLR 5015 [a] [1]). Sucha motion "is addressed to the sound discretion of the court" (Needleman v Tornheim, 106AD3d 707, 708 [2013]).
As the plaintiff correctly contends, the Supreme Court improvidently exercised itsdiscretion by, in effect, vacating the default of the defendant Mousa Khalil. The recorddemonstrates that Khalil was validly served in the action, as he failed to come forwardwith any factually specific, detailed evidence to rebut the presumption of valid servicecreated by the process server's affidavit of service (see ACT Props., LLC v Garcia, 102 AD3d 712, 713[2013]; Indymac Fed. BankFSB v Quattrochi, 99 AD3d 763 [2012]; Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2012]).Moreover, Khalil's assertion that he did not serve an answer because he thought that theattorneys for his codefendants also were representing his interests is insufficient toconstitute a reasonable excuse for the default. The evidence in the record establishes thatany such belief on the part of Khalil was unreasonable under the circumstances of thiscase (see Roussodimou v Zafiriadis, 238 AD2d 568, 569 [1997]).
Moreover, in light of the language of the guaranty that he executed, Khalil failed todemonstrate a potentially meritorious defense (see Inland Mtge. Capital Corp. v Realty Equities NM, LLC, 71AD3d 1089, 1090 [2010]; North Fork Bank v Computerized Quality SeparationCorp., 62 AD3d [*2]973 [2009]; Red Tulip, LLC v Neiva, 44AD3d 204, 209 [2007]).
Khalil's remaining contentions are without merit. Mastro, J.P., Leventhal, Austin andSgroi, JJ., concur.