| Emigrant Bank v O. Carl Wiseman |
| 2015 NY Slip Op 03316 [127 AD3d 1013] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Emigrant Bank, Formerly Known as Emigrant SavingsBank and Another, Appellant, v O. Carl Wiseman et al., Respondents, et al.,Defendant. |
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (PatriqueDenize and Ronald P. Labeck of counsel), for appellant.
Elliot S. Schlissel, Lynbrook, N.Y. (Andrea E. Miller of counsel), forrespondents.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of theSupreme Court, Nassau County (Adams, J.), entered November 12, 2013, which deniedits motion for a judgment of foreclosure and sale without prejudice to renewal uponproper notice, and (2) an order of the same court entered January 13, 2014, whichgranted the motion of the defendants O. Carl Wiseman and Belinda Wiseman for leave tofile a late answer, to restore this matter to the conference part, and, in effect, to vacatetheir default in appearing or answering.
Ordered that the appeal from the order entered November 12, 2013, is dismissed asabandoned; and it is further,
Ordered that the order entered January 13, 2014, is reversed, on the facts and in theexercise of discretion, and the motion of the defendants O. Carl Wiseman and BelindaWiseman for leave to file a late answer, to restore the matter to the conference part, and,in effect, to vacate the movants' default in appearing or answering is denied, and thematter is remitted to the Supreme Court, Nassau County, for further proceedingsconsistent herewith; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The plaintiff commenced this action to foreclose a mortgage after the borrowers, thedefendants O. Carl Wiseman and Belinda Wiseman (hereinafter together the Wisemans),defaulted on their residential mortgage loan for the subject premises. The Wisemans donot dispute that they were served with a summons and complaint on June 14, 2012, anddid not appear or answer. Thereafter, the plaintiff's motion, inter alia, for an order ofreference was granted in an order entered May 23, 2013. The Wisemans did not submitopposition papers or an answer in response to that motion. After the plaintiff moved for ajudgment of foreclosure and sale, the Wisemans moved for leave to serve a late answer,to restore this matter to the conference part, and, in effect, to vacate their default inappearing or answering. The Supreme Court granted the motion and directed that thematter be restored to the conference part.
[*2] "A defendant seeking to vacate a default in answering a complaint and to compelthe plaintiff to accept an untimely answer as timely must show both a reasonable excusefor the default and the existence of a potentially meritorious defense" (Chase Home Fin., LLC vMinott, 115 AD3d 634, 634 [2014]; see CPLR 3012 [d]; Community Preserv. Corp. vBridgewater Condominiums, LLC, 89 AD3d 784, 785 [2011]). Here, theWisemans failed to establish a reasonable excuse for their default (see Chase HomeFin., LLC v Minott, 115 AD3d at 634; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648[2014]; U.S. Bank N.A. vSlavinski, 78 AD3d 1167, 1167 [2010]). Their claim that they believed that theydid not need to answer or appear because they were going to modify their loan is notsupported by the record. The Wisemans did not dispute that the summons provided tothem by the plaintiff contained express warnings to answer the complaint and speak to anattorney (see Chase Home Fin., LLC v Minott, 115 AD3d at 634-635; HSBCBank USA, N.A. v Lafazan, 115 AD3d at 647). Moreover, the Wisemans had failedto comply with the residential foreclosure conference part orders directing them toprovide information and documents to the plaintiff, did not appear at their last scheduledconference, and, due to their inaction, never engaged in a mortgage modificationnegotiation with the plaintiff. Since the Wisemans failed to establish a reasonable excusefor their default, it is not necessary to determine whether they demonstrated a potentiallymeritorious defense to this action (see HSBC Bank USA, N.A. v Lafazan, 115AD3d at 648; Wells FargoBank, N.A. v Cervini, 84 AD3d 789, 790 [2011]).
In light of the foregoing, we need not consider the plaintiff's remaining contentions.Skelos, J.P., Leventhal, Cohen and Duffy, JJ., concur.