| Chase Home Fin., LLC v Minott |
| 2014 NY Slip Op 01427 [115 AD3d 634] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Chase Home Finance, LLC, Appellant, v Karon A.Minott, Respondent, et al., Defendants. |
—[*1] Karon A. Minott, Brooklyn, N.Y., respondent pro se.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Solomon, J.), dated September 6, 2012, which grantedthe motion of the defendant Karon A. Minott for leave to interpose a late answer and, ineffect, to vacate her default in appearing or answering.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the motion for leave to interpose a late answer and, in effect, to vacate therespondent's default in appearing or answering is denied.
The plaintiff commenced this foreclosure action in December 2007 against Karon A.Minott, among others. Minott does not dispute that she was served with process andreceived the summons and complaint in late 2007 or early 2008. The plaintiff also servedMinott with an order of reference in 2009. Nevertheless, Minott did not interpose ananswer or otherwise appear in the action for more than four years after she was servedwith the summons and complaint. By order to show cause dated July 5, 2012, Minottmoved for leave to interpose a late answer and, in effect, to vacate her default inappearing or answering. The Supreme Court granted the motion, concluding that Minott"ha[d] set forth a reasonable excuse and a potentially meritorious defense to the action."
A defendant seeking to vacate a default in answering a complaint and to compel theplaintiff to accept an untimely answer as timely must show both a reasonable excuse forthe default and the existence of a potentially meritorious defense (see Community Preserv. Corp. vBridgewater Condominiums, LLC, 89 AD3d 784 [2011]; Taddeo-Amendola v 970 Assets,LLC, 72 AD3d 677 [2010]; Perfect Care, Inc. v Ultracare Supplies, Inc., 71 AD3d 752,753 [2010]).
Here, Minott's claims that she "did not know that [she] needed to submit an answer,"and that she relied on the advice of her real estate broker instead of consulting anattorney, do not constitute a reasonable excuse for her default (see U.S. Bank N.A. vSlavinski, 78 AD3d 1167, 1168 [2010]; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823[2010]; Dorrer v Berry, 37AD3d 519, 520 [2007]). This is especially so in view of the fact that the summonswhich was served upon Minott contained the specific language mandated by RPAPL1320 warning her that she should "[s]peak to an attorney or go to the court," and that she"must respond by serving a copy of the answer" or risk the loss of her [*2]home (see HSBC Bank USA, N.A. v Lafazan, 115AD3d 647 [2014] [decided herewith]). Moreover, although Minott alleges that she responded tothe court notices to attend foreclosure settlement conferences in 2012, this does notexcuse her preceding multi-year failure to answer the complaint. In addition, she has notdemonstrated that the invocation of a court's inherent power to vacate a judgment in theinterest of substantial justice is warranted in this case (see Woodson v MendonLeasing Corp., 100 NY2d 62 [2003]; Katz v Marra, 74 AD3d 888 [2010]).
In view of our conclusion herein, it is unnecessary to reach the plaintiff's remainingcontentions. Eng, P.J., Balkin, Sgroi and Cohen, JJ., concur.