| U.S. Bank N.A. v Poku |
| 2014 NY Slip Op 04752 [118 AD3d 980] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association,Appellant, v Edusei Poku, Respondent, et al.,Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista of counsel), for appellant.
Dominic S. Rizzo, P.C., Melville, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Jacobson, J.), dated August 1, 2013, which denied itsmotion for leave to enter a default judgment against the defendants pursuant to CPLR3215 upon their failure to appear or answer the complaint and for the appointment of areferee to compute the sums due and owing to it, and, in effect, denied its application forthe court's recusal.
Ordered that the appeal from so much of the order as, in effect, denied the plaintiff'sapplication for the court's recusal is dismissed, as no appeal lies as of right from an orderthat does not decide a motion made on notice (see CPLR 5701 [a] [2]; Faello v Faello, 45 AD3d728 [2007]), and leave to appeal has not been granted (see Cascardo v Stacchini, 100AD3d 675, 677 [2012]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and the plaintiff'smotion for leave to enter a default judgment against the defendants upon their failure toappear or answer the complaint and for the appointment of a referee to compute the sumsdue and owing to it is granted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In 2007 the plaintiff commenced the instant action to foreclose a mortgage on acertain two-family residential property located at 1686 Rockaway Parkway, Brooklyn.The mortgage secured loans in the total sum of $315,000, which were made to thedefendants Edusei Poku and Shirley Sarpong (hereinafter the defendants). Upon thedefendants' default in appearing in this foreclosure action, the plaintiff made fourseparate motions for the appointment of a referee to compute the amounts due and owingto it. As relevant to the instant appeal, in the order appealed from, the Supreme Court,inter alia, denied the fourth motion made by the plaintiff for leave to enter a defaultjudgment against the defendants upon their failure to appear or answer the complaint andfor the appointment of a referee to compute the sums due and owing to it. The defendantEdusei Poku opposed the motion.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, themovant is required to submit proof of service of the summons and complaint, proof ofthe facts constituting [*2]the claim, and proof of thedefaulting party's default in answering or appearing (see CPLR 3215 [f]; U.S. Bank, N.A. v Razon, 115AD3d 739 [2014]; Loaiza vGuzman, 111 AD3d 608, 609 [2013]; Green Tree Servicing, LLC v Cary, 106 AD3d 691, 692[2013]; Dupps vBetancourt, 99 AD3d 855, 855 [2012]). Here, in support of its motion for leaveto enter a default judgment, the plaintiff met all of these requirements (see Dupps vBetancourt, 99 AD3d at 855). The affidavits of service proffered by the plaintiffconstitute prima facie evidence of proper service of the summons and complaint upon thedefendants (see Carver Fed.Sav. Bank v Supplice, 109 AD3d 572 [2013]; Stephan B. Gleich & Assoc. vGritsipis, 87 AD3d 216, 220 [2011]). Further, the affidavit of the plaintiff'sservicing agent, which was accompanied by a power of attorney demonstrating theauthority of the agent to act on behalf of the plaintiff, provided proof of the factsconstituting the claim and proof of the defendants' default (see CWCapital Asset Mgt., LLC vGreat Neck Towers, LLC, 99 AD3d 850, 851 [2012]; Aames Capital Corp. vFord, 294 AD2d 134 [2002]; cf. HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736[2009]).
In addition, contrary to Poku's contention, CPLR 3215 (c) does not apply where, ashere, the plaintiff's initial motion for the appointment of a referee to compute and, ineffect, for leave to enter a judgment based upon the defendants' default in appearing andanswering was made within one year of the default (see Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d804 [2013]; Jones vFuentes, 103 AD3d 853 [2013]; Nowicki v Sports World Promotions, 48 AD3d 435, 436[2008]; Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999]). Furthermore,the plaintiff demonstrated that it did not abandon the action (see Jones v Fuentes, 103 AD3d853 [2013]). Accordingly, the Supreme Court should have granted the plaintiff'smotion for leave to enter a default judgment against the defendants upon their failure toappear or answer the complaint and for the appointment of a referee to compute the sumsdue and owing to it.
The plaintiff's remaining contentions are either without merit or not properly beforethis Court. Rivera, J.P., Balkin, Chambers and Miller, JJ., concur.