| Bank of N.Y. v Young |
| 2014 NY Slip Op 09090 [123 AD3d 1068] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Bank of New York, as Trustee for the CertificateholdersCWABS, Inc. Asset-Backed Certificates, Series 2006-22, Appellant, v IvanYoung, Respondent, et al., Defendants. |
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), forappellant.
Young Law Group, PLLC, Bohemia, N.Y. (Ivan Young, pro se, of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Spinner, J.), dated March 7, 2013, which denied itsmotion, in effect, to vacate a prior order of the same court dated July 18, 2011, grantingthe unopposed motion of the defendant Ivan Young pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against him for lack of standing and lack ofpersonal jurisdiction.
Ordered that the order dated March 7, 2013, is affirmed, with costs.
The plaintiff commenced this mortgage foreclosure action in 2008, alleging that thedefendant Ivan Young failed to comply with the conditions of the mortgage by notmaking the payments due thereunder. In April 2010, Young moved pursuant to CPLR3211 (a) to dismiss the complaint insofar as asserted against him for lack of standing andlack of personal jurisdiction. The plaintiff did not oppose the motion. In an order datedJuly 18, 2011, the Supreme Court granted Young's unopposed motion. Thereafter, theplaintiff moved, in effect, to vacate the order dated July 18, 2011. In an order datedMarch 7, 2013, the Supreme Court treated the plaintiff's motion as one for leave toreargue and renew, and denied the motion. However, since the order dated July 18, 2011,was entered upon the plaintiff's failure to oppose Young's motion, the Supreme Courtshould have treated the plaintiff's motion solely as a motion to vacate the order dated July18, 2011.
Although the Supreme Court incorrectly treated the plaintiff's motion as one forleave to reargue, it nonetheless did not err in denying the motion (see Schenk v Staten Is. Univ.Hosp., 108 AD3d 661, 662 [2013]). A party seeking to vacate an order enteredupon his or her failure to oppose a motion must demonstrate both a reasonable excuse forthe default and a potentially meritorious opposition to the motion (see CPLR5015 [a] [1]; Oller v LibertyLines Tr., Inc., 111 AD3d 903, 904 [2013]; Schenk v Staten Is. Univ.Hosp., 108 AD3d at 662; Smyth v Getty Petroleum Mktg., Inc., 103 AD3d 790[2013]). Here, the plaintiff's bare allegation of law office failure was insufficient to showa reasonable excuse for its default (see Carillon Nursing & Rehabilitation Ctr., LLP v Fox,118 AD3d 933 [2014]; Bravo v New York City Hous. Auth., 253 AD2d 510[1998]; cf. 1158 Props., LLC v1158 McDonald, LLC, 104 AD3d 658 [2013]).
[*2] As the plaintiff failed to show a reasonable excuse forits default, there is no need to address the parties' remaining contentions (see HSBC Bank USA, N.A. vLafazan, 115 AD3d 647, 648 [2014]; U.S. Bank N.A. v Stewart, 97 AD3d 740 [2012]).
Since the order dated July 18, 2011, is not before us, we do not reach the propriety ofthe Supreme Court's inclusion of the term "with prejudice" in that order. Rivera, J.P.,Leventhal, Chambers and Sgroi, JJ., concur.