| One W. Bank, FSB v Valdez |
| 2015 NY Slip Op 03813 [128 AD3d 655] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| One West Bank, FSB, Respondent, v MarthaValdez, Appellant, et al., Defendants. |
Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), forappellant.
In an action to foreclose a mortgage, the defendant Martha Valdez appeals, as limitedby her brief, from stated portions of an order of the Supreme Court, Queens County(Rios, J.), entered May 20, 2013, which, inter alia, denied her motion pursuant to CPLR3012 (d) to compel the plaintiff to accept her late answer.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
In April 2011, the plaintiff commenced this action to foreclose a mortgage, allegingthat the defendant Martha Valdez defaulted on her payment obligations under the notesecured by the mortgage. Valdez failed to timely appear or answer the complaint(see CPLR 320 [a]; 3012 [c]). In May 2012, Valdez filed an answer, which theplaintiff rejected as untimely. Subsequently, Valdez moved to dismiss the complaintinsofar as asserted against her based on, among other things, lack of standing. Valdezseparately moved to compel the plaintiff to accept her late answer. The Supreme Courtdenied the motions.
"To extend the time to answer the complaint and to compel the plaintiff to accept anuntimely answer as timely, a defendant must provide a reasonable excuse for the delayand demonstrate a potentially meritorious defense to the action" (Mannino Dev., Inc. v Linares,117 AD3d 995, 995 [2014]; see CPLR 3012 [d]; HSBC Bank USA, N.A. vLafazan, 115 AD3d 647, 648 [2014]). "The determination of what constitutes areasonable excuse lies within the sound discretion of the Supreme Court" (Maspeth Fed. Sav. & LoanAssn. v McGown, 77 AD3d 889, 890 [2010]; see Mannino Dev., Inc. vLinares, 117 AD3d at 995; JP Morgan Chase Bank, N.A. v Palma, 114 AD3d 645, 645[2014]).
Here, the Supreme Court providently exercised its discretion in determining thatValdez's conclusory and unsubstantiated allegations of neglect by her prior counsel didnot constitute a reasonable excuse for her delay in answering the complaint (see Wood v Tuttle, 106 AD3d1393, 1394 [2013]; HSBCBank USA N.A. v Wider, 101 AD3d 683, 683 [2012]; Wells Fargo Bank, N.A. vCervini, 84 AD3d 789, 789 [2011]; Desiderio v Devani, 24 AD3d 495, 496 [2005]). SinceValdez failed to offer a reasonable excuse, it is not necessary to consider whether shesufficiently demonstrated the existence of a potentially meritorious defense (see Citimortgage, Inc. v Stover,124 AD3d 575 [2015]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d at648).
[*2] Accordingly, the Supreme Courtproperly denied Valdez's motion to compel the plaintiff to accept her late answer (see Citimortgage, Inc. v Stover,124 AD3d 575 [2015]). Valdez's remaining contentions are academic in light of thisdetermination. Skelos, J.P., Balkin, Roman and Hinds-Radix, JJ., concur.