| EMC Mtge. Corp. v Lamb |
| 2015 NY Slip Op 01779 [126 AD3d 669] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| EMC Mortgage Corporation,Plaintiff, v Deangela Lamb et al., Defendants, and Marilyn Durham,Respondent. Reoco, Inc., Nonparty Appellant. |
Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Kenneth J. Flickinger ofcounsel), for nonparty appellant.
Rubin & Licatesi, P.C., Garden City, N.Y. (Richard H. Rubin and Amy J. Zamirof counsel), for respondent.
In an action to foreclose a mortgage, the nonparty, Reoco, Inc., appeals from an orderof the Supreme Court, Kings County (Schack, J.), entered December 14, 2012, whichgranted the motion of the defendant Marilyn Durham to vacate a judgment of foreclosureand sale dated December 30, 2008, entered upon her failure to appear or answer, and todismiss the complaint based on the plaintiff's lack of standing.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Marilyn Durham to vacate a judgment of foreclosure and sale dated December30, 2008, entered upon her failure to appear or answer, and to dismiss the complaintbased on the plaintiff's lack of standing is denied.
The plaintiff commenced this action to foreclose a mortgage on property located inBrooklyn, and subsequently assigned its interest in the property to the nonparty appellant,Reoco, Inc. (hereinafter the appellant). Upon the defendants' failure to appear or answer,a judgment of foreclosure and sale was entered, and the defendant Marilyn Durhamsubsequently moved, inter alia, to vacate the judgment. In the order appealed from, theSupreme Court granted Durham's motion. We reverse.
A defendant seeking to vacate a default in appearing or answering must demonstratea reasonable excuse for the default and a potentially meritorious defense to the action(see CPLR 5015 [a] [1]; U.S. Bank N.A. v Stewart, 97 AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. vLuden, 91 AD3d 701, 701 [2012]; Fremont Inv. & Loan v Bertram, 90 AD3d 988[2011]; Citimortgage, Inc. vBrown, 83 AD3d 644, 645 [2011]). If a defendant fails to demonstrate areasonable excuse for the default, it is unnecessary to consider the issue of whether thedefendant demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank vMalave, 107 AD3d 880 [2013]).
[*2] Here, Durham failed to offer a reasonable excuse for her extended delay inappearing or answering in this action. Accordingly, the Supreme Court erred in grantingthat branch of her motion which was to vacate the judgment of foreclosure and sale (see JP Morgan Mtge. AcquisitionCorp. v Hayles, 113 AD3d 821, 823 [2014]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989,990 [2010]).
In light of our determination, it is unnecessary to reach the appellant's remainingcontentions. Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.