| LNV Corp. v Forbes |
| 2014 NY Slip Op 07987 [122 AD3d 805] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| LNV Corporation, Respondent, v WillieForbes, Appellant, et al., Defendants. |
Yvette V. Dudley, P.C., Springfield Gardens, N.Y., for appellant.
Paul J. McGeough, New York, N.Y., and Stein, Weiner & Roth, LLP,Carle Place, N.Y. (Gerald Roth and Jonathan M. Cohen of counsel), for respondent (onebrief filed).
In an action to foreclose a mortgage, the defendant Willie Forbes appeals, as limitedby his brief, from (1) so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated July 11, 2013, as denied his cross motion to vacate his default inappearing and answering the complaint and to dismiss the complaint insofar as assertedagainst him or, in the alternative, to extend the time to file an answer and compel theplaintiff to accept his late answer, and (2) so much of an order of the same court, alsodated July 11, 2013, as granted the plaintiff's motion for leave to enter a default judgmentagainst him upon his failure to appear or answer the complaint and for the appointmentof a referee to compute the sums due and owing to the plaintiff.
Ordered that the orders are affirmed insofar as appealed from, with one bill ofcosts.
The defendant Willie Forbes allegedly defaulted upon a $1.14 million loan that wassecured by a mortgage on real property located in Brooklyn. The plaintiff (hereinafter thelender) commenced this action to foreclose the mortgage. It is undisputed that Forbesnever appeared or answered the complaint.
More than one year after Forbes's failure to answer, the lender moved for leave toenter a default judgment and for the appointment of a referee to compute the sums dueand owing to it. Forbes opposed the motion and cross-moved to vacate his default anddismiss the complaint insofar as asserted against him or, in the alternative, to extend thetime to file an answer and compel the plaintiff to accept his late answer. The SupremeCourt, among other things, granted the lender's motion and denied Forbes's crossmotion.
The Supreme Court providently exercised its discretion in denying that branch ofForbes's cross motion which was pursuant to CPLR 3215 (c) to dismiss the complaintinsofar as asserted against him as abandoned (see generally Countrywide HomeLoans, Inc. v Brown, 19 AD3d [*2]638, 638 [2005];North Fork Bank v Cantico Intl., 284 AD2d 442, 442 [2001]). Contrary toForbes's contention, the lender met its burden of demonstrating both a reasonable excusefor the delay in timely moving for a default judgment against him (see Guarneri v St. John, 18AD3d 813, 813 [2005]; Parker v City of New York, 272 AD2d 310, 311[2000]) and a potentially meritorious cause of action (see Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011];Parker v City of New York, 272 AD2d 310, 311 [2000]). Under thecircumstances of this case, including the lack of any prejudice to Forbes caused by thelender's delay (see Iorizzo vMattikow, 25 AD3d 762, 764 [2006]), the Supreme Court providently exercisedits discretion in excusing the lender's delay.
The Supreme Court also properly denied that branch of Forbes's cross motion whichwas to dismiss the complaint insofar as asserted against him for lack of proper service.The affidavits of the process servers submitted by the lender constituted prima facieevidence of proper service pursuant to CPLR 308 (4) (see Deutsche Bank Natl. Trust Co.v Jagroop, 104 AD3d 723, 724 [2013]; U.S. Bank N.A. v Hossain, 94 AD3d 979, 979 [2012];Matrix Fin. Servs. Corp. v McKiernan, 295 AD2d 579, 580 [2002]). Forbes'saffidavit was insufficient to rebut the presumption of proper service created by theprocess servers' affidavits (seeYoungstown Tube Co. v Russo, 120 AD3d 1409 [2014]).
Forbes's remaining contentions, including his contention that his default in appearingand answering the complaint should be vacated, are without merit.
Accordingly, the Supreme Court properly denied Forbes's cross motion and properlygranted the lender's motion (seegenerally U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]). Mastro, J.P.,Balkin, Miller and Duffy, JJ., concur.