| Citimortgage, Inc. v Stover |
| 2015 NY Slip Op 00328 [124 AD3d 575] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v ArthurStover, Also Known as W. Arthur Stover, Appellant, et al.,Defendant. |
Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (ChristopherA. Gorman of counsel), for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Arthur Stover appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Spinner,J.), dated January 29, 2013, as denied those branches of his motion which were, in effect,to vacate his default in answering the complaint and to dismiss the complaint insofar asasserted against him based on lack of personal jurisdiction and lack of standing, or forleave to serve a late answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this mortgage foreclosure action in April 2008, allegingthat the defendant Arthur Stover (hereinafter the defendant) failed to comply with theconditions of the mortgage by not making the payments due thereunder. The defendantdid not appear or answer the complaint. On April 30, 2009, the plaintiff's motion for anorder of reference was granted based upon, inter alia, proof of the defendant's default. OnFebruary 29, 2012, the defendant moved, among other things, in effect, to vacate hisdefault in answering the complaint and to dismiss the complaint insofar as assertedagainst him based on lack of personal jurisdiction and lack of standing, or for leave toserve a late answer. In the order appealed from, the Supreme Court denied the subjectbranches of the defendant's motion.
A defendant seeking to vacate a default in answering a complaint and to compel theplaintiff to accept an untimely answer must show both a reasonable excuse for the defaultand the existence of a potentially meritorious defense (see CPLR 2004, 3012 [d];Chase Home Fin., LLC vMinott, 115 AD3d 634 [2014]; Community Preserv. Corp. v Bridgewater Condominiums, LLC,89 AD3d 784 [2011]; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677[2010]). Here, the defendant failed to demonstrate a reasonable excuse for his default. Inlight of the defendant's failure to offer a reasonable excuse, it is unnecessary to considerwhether he sufficiently demonstrated a potentially meritorious defense (see HSBC Bank USA, N.A. vLafazan, 115 AD3d 647, 648 [2014]; U.S. Bank N.A. v Stewart, 97 AD3d 740 [2012]; see also HSBC Bank USA, N.A. vRoldan, 80 AD3d 566, 567 [2011]).
The defendant's remaining contentions are without merit.
[*2] Accordingly, the Supreme Court properly denied thosebranches of the defendant's motion which were, in effect, to vacate his default inanswering the complaint and to dismiss the complaint insofar as asserted against himbased on lack of personal jurisdiction and lack of standing, or for leave to serve a lateanswer. Leventhal, J.P., Chambers, Hall and Duffy, JJ., concur.