| HSBC Bank USA, N.A. v Lafazan |
| 2014 NY Slip Op 01436 [115 AD3d 647] |
| March 5, 2014 |
| Appellate Division, Second Department |
| HSBC Bank USA, National Association,Respondent, v Jeffrey Lafazan et al., Appellants, et al.,Defendants. |
—[*1] Fein, Such & Crane, LLP, Chestnut Ridge, N.Y. (Michael S. Hanusek and RichardGerbino of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Jeffrey Lafazan and SandraLafazan appeal from an order of the Supreme Court, Nassau County (Adams, J.), enteredAugust 24, 2012, which denied their motion pursuant to CPLR 2004 and 3012 (d) tocompel the plaintiff to accept their late answer.
Ordered that the order is affirmed, with costs.
"To compel the plaintiff to accept an untimely answer as timely, a defendant mustprovide a reasonable excuse for the delay and demonstrate a potentially meritoriousdefense to the action" (Ryan vBreezy Point Coop., Inc., 76 AD3d 523, 524 [2010]; see Community Preserv. Corp. vBridgewater Condominiums, LLC, 89 AD3d 784, 785 [2011]). "Thedetermination of what constitutes a reasonable excuse lies within the sound discretion ofthe Supreme Court" (MaspethFed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890 [2010]; see Star Indus., Inc. v InnovativeBeverages, Inc., 55 AD3d 903, 904 [2008]; Antoine v Bee, 26 AD3d 306, 306 [2006]).
Here, the appellants' appearance and participation, along with their counsel, atsettlement conferences required for certain residential mortgage foreclosure actions(see 22 NYCRR 202.12-a) evinced a desire to save their home. However, suchappearances do not provide a reasonable excuse for their delay in answering. At the timethe first conference was held, approximately 261 days had passed since the appellants'time to answer the complaint had expired (see CPLR 3012 [a]). Under thecircumstances of this case, the appellants' purported reliance on settlement discussionsand their contention, in effect, that the plaintiff's counsel should have advised them thatthey were in default, do not constitute a reasonable excuse (see Community Preserv.Corp. v Bridgewater Condominiums, LLC, 89 AD3d at 785; see also OnewestBank FSB v Berry, 25 Misc 3d 1218[A], 2009 NY Slip Op 52171[U] [Sup Ct,Suffolk County 2009]). Moreover, these assertions are belied by the content and warningcontained in the specialized summons served in this action to foreclose a residentialmortgage (see RPAPL 1320). Since the appellants failed to offer a reasonable[*2]excuse, it is unnecessary to consider whether theysufficiently demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v Stewart,97 AD3d 740 [2012]).
Accordingly, the Supreme Court properly denied the appellants' motion pursuant toCPLR 2004 and 3012 (d) to compel the plaintiff to accept their answer as timely. Dillon,J.P., Balkin, Chambers and Cohen, JJ., concur.