| BAC Home Loans Servicing, LP v Parone |
| 2015 NY Slip Op 02440 [126 AD3d 923] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| BAC Home Loans Servicing, LP, Formerly Known asCountrywide Home Loans Servicing, LP, Respondent, v Anthony Parone et al.Appellants, et al., Defendants. |
Katerina N. Arvanitakis, Bayside, N.Y., for appellants.
In an action to foreclose a mortgage, the defendants Anthony Parone and ClaudiaMancia-Parone appeal from an order of the Supreme Court, Queens County (Kitzes, J.),entered June 12, 2013, which denied their motion, in effect, to vacate a prior order of thesame court dated April 30, 2013, granting the plaintiff's unopposed motion pursuant toCPLR 3217 to discontinue the action without prejudice.
Ordered that the order entered June 12, 2013, is affirmed, without costs ordisbursements.
The plaintiff commenced this mortgage foreclosure action in 2010, alleging that thedefendants Anthony Parone and Claudia Mancia-Parone (hereinafter together theParones) did not comply with the conditions of the mortgage by failing to make thepayments due thereunder. The Parones failed to timely file an answer, and they did notmove to extend the time to appear or plead (see CPLR 3012 [a], [d]). Althoughthey attempted to file an answer nearly two years after the complaint was filed andserved, they did not move to compel the acceptance of a pleading untimely served(see CPLR 3012 [a], [d]), or to vacate their default in answering or appearing.Thereafter, the plaintiff moved pursuant to CPLR 3217 to discontinue the action. TheParones failed to oppose the motion, and the Supreme Court granted the plaintiff'sunopposed motion. Subsequently, the Supreme Court denied a motion by the Parones, ineffect, to vacate the prior order granting the plaintiff's unopposed motion to discontinuethe action without prejudice.
"A party seeking to vacate an order entered upon his or her default in opposing amotion must demonstrate both a reasonable excuse for the default and a potentiallymeritorious opposition to the motion" (Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813[2012]; see CPLR 5015 [a] [1]; Bank of N.Y. v Young, 123 AD3d 1068 [2014]; Schenk v Staten Is. Univ.Hosp., 108 AD3d 661, 662 [2013]). Here, even if the Parones proffered areasonable excuse for their default, they failed to demonstrate a potentially meritoriousopposition to the motion (see CPLR 3217; Venture I, Inc. v Voutsinas, 8 AD3d 475 [2004]; Aisonv Hudson Riv. Black Riv. Regulating Dist., 279 AD2d 754, 755 [2001]; seegenerally Schenk v Staten Is. Univ. Hosp., 108 AD3d at 662).
The Parones' remaining contention is not properly before this Court.
Accordingly, the Supreme Court properly denied the Parones' motion, in effect, to[*2]vacate the prior order granting the plaintiff'sunopposed motion pursuant to CPLR 3217 to discontinue the action without prejudice.Leventhal, J.P., Hall, Cohen and Maltese, JJ., concur.