| Aurora Loan Servs., LLC v Ahmed |
| 2014 NY Slip Op 07462 [122 AD3d 557] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| Aurora Loan Services, LLC,Respondent, v Shakil Ahmed, Appellant, et al.,Defendants. |
Malik & Associates, P.C., Briarwood, N.Y. (Pankaj Malik of counsel), forappellant.
Stevens & Lee, New York, N.Y. (Bradley L. Mitchell and Constantine D.Pourakis of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Shakil Ahmed appeals from (1)an order of the Supreme Court, Queens County (Nahman, J.), dated July 25, 2012, whichgranted that branch of the plaintiff's motion which was to vacate an order of the samecourt dated April 27, 2012, granting his unopposed motion for leave to reargue andrenew his prior motion to vacate a judgment of foreclosure and sale dated March 11,2009, entered upon his default in appearing and answering the complaint, and grantedleave to the plaintiff to oppose his motion for leave to reargue and renew, and (2) anorder of the same court entered October 4, 2012, which denied, on the merits, his motionfor leave to reargue and renew his prior motion to vacate the judgment of foreclosure andsale entered upon his default.
Ordered that the appeal from so much of the order entered October 4, 2012, asdenied that branch of the defendant Shakil Ahmed's motion which was for leave toreargue is dismissed, as no appeal lies from an order denying reargument; and it isfurther,
Ordered that the order dated July 25, 2012, is affirmed; and it is further,
Ordered that the order entered October 4, 2012, is affirmed insofar as reviewed; andit is further,
Ordered that one bill of costs is awarded to the plaintiff.
"In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1), themoving party is required to demonstrate a reasonable excuse for his or her default and apotentially meritorious opposition to the motion" (Delvalle v Mercedes Benz USA, LLC, 117 AD3d 893, 893[2014] [internal quotation marks and citation omitted]; see Braynin v Dunleavy, 109AD3d 571 [2013]; Diaz vChaudhry, 91 AD3d 590 [2012]). "A motion to vacate a default is addressed tothe sound discretion of the motion court" (Braynin v Dunleavy, 109 AD3d at571; see Kohn v Kohn, 86AD3d 630 [2011]).
[*2] Here, theplaintiff demonstrated a reasonable excuse for its default in opposing the motion of thedefendant Shakil Ahmed for leave to reargue and renew Ahmed's prior motion to vacatea judgment of foreclosure and sale entered upon Ahmed's default in answering andappearing. The plaintiff set forth a sufficiently detailed and credible account of law officefailure to explain its default in opposing Ahmed's motion, and the Supreme Courtprovidently exercised its discretion in accepting that explanation (see Rocco v Family Foot Ctr.,94 AD3d 1077 [2012]; Kohn v Kohn, 86 AD3d 630 [2011]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]). The plaintiff also demonstrated the existenceof a potentially meritorious opposition to Ahmed's motion for leave to reargue and renew(see Delvalle v Mercedes BenzUSA, LLC, 117 AD3d 893 [2014]; Diaz v Chaudhry, 91 AD3d 590 [2012]). Accordingly, theSupreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was to vacate its default in opposing Ahmed's motion and ingranting the plaintiff leave to oppose the motion.
Upon the submission of the plaintiff's opposition and Ahmed's reply papers, theSupreme Court properly denied, on the merits, that branch of Ahmed's motion which wasfor leave to renew. Ahmed did not provide new facts or new law that would change thecourt's prior determination to deny Ahmed's motion to vacate the judgment of foreclosureand sale entered upon his lengthy default in appearing and answering (see CPLR2221 [e] [3]; Wells Fargo Bank,N.A. v Russell, 101 AD3d 860 [2012]). Mastro, J.P., Sgroi, Cohen and Miller,JJ., concur.