| Wells Fargo Bank, N.A. v Mazzara |
| 2015 NY Slip Op 00750 [124 AD3d 875] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Successor by Merger to WellsFargo Bank N.A., Successor by Merger to Wells Fargo Southwest, N.A., FormerlyKnown as Wachovia Mortgage FSB, Respondent, v Christine Mazzara,Appellant, et al., Defendants. |
Law Office of Nicholas M. Moccia, P.C., Staten Island, N.Y., for appellant.
Druckman Law Group PLLC, Westbury, N.Y. (Lisa M. Browne of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Christine Mazzara appeals, aslimited by her brief, from so much of an order of the Supreme Court, Richmond County(Maltese, J.), dated November 12, 2013, as denied those branches of her motion whichwere pursuant CPLR 5015 (a) to vacate an order of reference of the same court datedApril 30, 2012, entered upon her default, and pursuant to CPLR 1012 (a) or,alternatively, CPLR 1013, for leave to permit Frank Mazzara to intervene in theaction.
Ordered that the order is affirmed insofar as appealed from, with costs.
A party seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstratea reasonable excuse for its delay in appearing and answering the complaint and apotentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Citibank [S.D.], N.A. v Baron, 115 AD3d 901 [2014]; U.S. Bank N.A. v Slavinski, 78AD3d 1167 [2010]; O'Donnell v Frangakis, 76 AD3d 999, 1000 [2010]; Katz v Marra, 74 AD3d888, 890 [2010]).
Here, the appellant failed to demonstrate a reasonable excuse for her default. In viewof the lack of a reasonable excuse, it was unnecessary for the Supreme Court to considerwhether the appellant sufficiently demonstrated the existence of a potentially meritoriousdefense (see Centennial El.Indus., Inc. v Ninety-Five Madison Corp., 90 AD3d 689, 690 [2011];O'Donnell v Frangakis, 76 AD3d at 1000). In any event, the court properlydetermined that the appellant failed to make such a showing.
Upon a timely motion, a person is permitted to intervene in an action as of right, "1.when a statute of the state confers an absolute right to intervene; or 2. when therepresentation of the person's interest by the parties is or may be inadequate and theperson is or may be bound by the judgment; or 3. when the action involves thedisposition or distribution of, or the title or a claim for damages for injury to, propertyand the person may be affected adversely by the judgment" (CPLR 1012 [a]).Additionally, upon a timely motion, the court, in its discretion, may permit a person tointervene, "when a statute of the state confers a right to intervene . . . orwhen the person's claim or [*2]defense and the mainaction have a common question of law or fact" (CPLR 1013). In exercising its discretion,the court shall consider whether the intervention will unduly delay the determination ofthe action or prejudice the substantial rights of any party (see id.).
Contrary to the appellant's contention, the Supreme Court properly determined thatFrank Mazzara should not be permitted to intervene in the action. The motion, madenearly four years after the commencement of the action, was not timely. Furthermore, it isundisputed that Frank Mazzara was not a borrower, mortgagor, or record owner of thesubject premises. Indeed, the affidavit submitted by Frank Mazzara did not evenaffirmatively assert that he was residing at the subject premises at the time the action wascommenced. Nevertheless, even if Frank Mazzara was a tenant or occupant, this stillwould not warrant intervention at this late stage because, while tenants are necessaryparties to a foreclosure action, they are not indispensable parties (see NYCTL 1998-2 Trust vMichael Holdings, Inc., 77 AD3d 805, 806 [2010]; G.C.M. Corp. v 382 VanDuzer Corp., 249 AD2d 264, 265 [1998]; Balt v J.S. Funding Corp., 230AD2d 699 [1996]).
Accordingly, the Supreme Court properly denied those branches of the appellant'smotion which were to vacate the order of reference entered upon her default, and forleave to permit Frank Mazzara to intervene in the action. Skelos, J.P., Miller,Hinds-Radix and LaSalle, JJ., concur.