| Deutsche Bank Natl. Trust Co. v Ramirez |
| 2014 NY Slip Op 03228 [117 AD3d 674] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forHalo 2006-2, Appellant, v Luz Estela Ramirez, Also Known as Luz E. Ramirez,Respondent, et al., Defendants. |
Hogan Lovells US LLP, New York, N.Y. (Chava Brandriss, David Dunn, and RobinL. Muir of counsel), for appellant.
Scott A. Rosenberg, Kew Gardens, N.Y. (Linda Holmes, Oda Friedheim, andKasowitz, Benson, Torres & Friedman, LLP [David J. Abrams and JenniferMcDougall], of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Taylor, J.), entered August 21, 2012, which granted themotion of the defendant Luz Estela Ramirez, also known as Luz E. Ramirez, to reargueher motion to vacate a judgment of foreclosure and sale, entered upon her default inanswering or appearing, which had previously been denied in an order entered January31, 2012, and, upon reargument, vacated the determination in the order entered January31, 2012, denying her motion to vacate the judgment of foreclosure and sale, andthereupon granted the motion.
Ordered that the order entered August 21, 2012, is modified, on the law, by deletingthe provision thereof, upon reargument, vacating the determination in the order enteredJanuary 31, 2012, denying the motion of the defendant Luz Estela Ramirez, also knownas Luz E. Ramirez, to vacate the judgment of foreclosure and sale and thereupon grantingthe motion, and substituting therefor a provision, upon reargument, adhering to theoriginal determination in the order entered January 31, 2012, denying the motion of thedefendant Luz Estela Ramirez, also known as Luz E. Ramirez, to vacate the judgment offoreclosure and sale; as so modified, the order entered August 21, 2012, is affirmed, withcosts to the appellant.
A motion for reargument must be "based upon matters of fact or law allegedlyoverlooked or misapprehended by the court in determining the prior motion, but shall notinclude any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). Suchmotions are addressed to the sound discretion of the Supreme Court (see HSBC Bank USA, N.A. vHalls, 98 AD3d 718 [2012]; Matter of American Alternative Ins. Corp. v Pelszynski, 85AD3d 1157, 1158 [2011]). Here, the Supreme Court providently exercised itsdiscretion in granting that branch of the motion of the defendant Luz Estela Ramirez,also known as Luz E. Ramirez, which was for leave to reargue her motion to vacate ajudgment of foreclosure and sale entered against her upon her failure to appear oranswer.
Nevertheless, upon reargument, Ramirez failed to meet her burden on the motion tovacate the judgment of foreclosure and sale. A defendant seeking to vacate a default inanswering [*2]or appearing must demonstrate areasonable excuse for the default and a potentially meritorious defense to the action(see CPLR 5015 [a] [1]; Wells Fargo Bank v Malave, 107 AD3d 880 [2013]; U.S. Bank N.A. v Stewart, 97AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701, 701[2012]; Pursoo v Ngala-El,89 AD3d 712 [2011]; Citimortgage, Inc. v Brown, 83 AD3d 644 [2011]). Here,while the Supreme Court providently exercised its discretion in accepting Ramirez'sproffered excuse for her default in answering or appearing, Ramirez failed todemonstrate a potentially meritorious defense to the foreclosure action.
Accordingly, the Supreme Court, upon reargument, should have adhered to itsoriginal determination denying Ramirez's motion to vacate the judgment of foreclosureand sale. Balkin, J.P., Dickerson, Leventhal and Roman, JJ., concur.