| Wells Fargo Bank, N.A. v Krauss |
| 2015 NY Slip Op 04123 [128 AD3d 813] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Appellant, v GershonKrauss et al., Defendants, and BAC Home Loans Servicing, L.P., Formerly Known asCountrywide Home Loans Servicing, L.P., Respondent. |
Pollock & Maguire, LLP, White Plains, N.Y. (Peter S. Dawson of counsel), forappellant.
Dorf & Nelson, LLP, Rye, N.Y. (Jonathan B. Nelson of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Schack, J.), dated June 26, 2013, which denied its motionpursuant to CPLR 3215 for leave to enter judgment against the defendant BAC HomeLoans Servicing, L.P., formerly known as Countrywide Home Loans Servicing, L.P.,upon its failure to appear or answer the complaint, and granted that branch of thatdefendant's cross motion which was to vacate its default in appearing and answering thecomplaint.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion pursuant to CPLR 3215 for leave to enter a judgmentagainst the defendant BAC Home Loans Servicing, L.P., formerly known asCountrywide Home Loans Servicing, L.P., upon that defendant's failure to appear oranswer the complaint, is granted, and that branch of that defendant's cross motion whichwas to vacate its default in appearing and answering the complaint is denied.
The plaintiff moved pursuant to CPLR 3215 for leave to enter judgment against thedefendant BAC Home Loans Servicing, L.P., formerly known as Countrywide HomeLoans Servicing, L.P. (hereinafter BAC), upon its failure to appear or answer thecomplaint. The plaintiff demonstrated its entitlement to relief by submitting proof ofservice of the summons and complaint, the facts constituting the claim, and BAC'sdefault (see CPLR 3215 [f]; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]; Wassertheil v Elburg, LLC, 94AD3d 753, 753 [2012]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613-614[2008]; Levine v Forgotson'sCent. Auto & Elec., Inc., 41 AD3d 552 [2007]).
"To defeat a facially adequate CPLR 3215 motion, a defendant must show either thatthere was no default, or that it has a reasonable excuse for its delay and a potentiallymeritorious defense" (Fried v Jacob Holding, Inc., 110 AD3d at 60, citingWassertheil v Elburg, LLC, 94 AD3d at 753). "Whether a proffered excuse isreasonable is a sui generis determination to be made by the court based on all relevantfactors, including the extent of the delay, whether there has been prejudice to theopposing party, whether there has been willfulness, and the strong public policy in favorof resolving cases on the merits" (Suede v Suede, 124 AD3d 869, 871 [2015] [internalquotation marks omitted]; seeOller v Liberty Lines Tr., Inc., 111 AD3d 903, 904 [2013]).
[*2] Here, BAC's proffered excuse, that its default inappearing and answering the complaint was due to a clerical error, was unsubstantiated,conclusory, and inadequately explained, and, therefore, did not constitute a reasonableexcuse for the default (seeOgunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991, 992 [2011]; Westchester Med. Ctr. vPhiladelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010]; Campbell-Jarvis v Alves, 68AD3d 701, 702 [2009]; White v Daimler Chrysler Corp., 44 AD3d 651, 651[2007]). Moreover, the record demonstrates that the alleged mistake was not an isolatederror, but part of a pattern of "repeated neglect" (Roussodimou v Zafiriadis, 238AD2d 568, 569 [1997]; seeMajestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 518 [2005]). Inthat regard, BAC failed to present a reasonable excuse for its further delay, after beingapprised of its default, in cross-moving to vacate its default. Although BAC was advisedby the plaintiff that the plaintiff would not accept service of an untimely answer, BACtook no steps to vacate its default or compel the plaintiff to accept an untimely answeruntil more than five months later, after the plaintiff moved for leave to enter judgmentagainst it (see Miller v AteresShlomo, LLC, 49 AD3d 612, 613 [2008]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716[2004]).
While the existence of a separate action relating to the same real property at issue inthis action, commenced by BAC against the plaintiff four months after thecommencement of this action, demonstrated a lack of intent by BAC to abandon itsclaims and defenses, BAC was not entitled to simply ignore the plaintiff's action andproceed with its own action instead. Since BAC failed to present a reasonable excuse forits persistent default in this action, the Supreme Court improvidently exercised itsdiscretion in denying the plaintiff's motion and granting BAC's cross motion (see Trepel v Greenman-Pedersen,Inc., 99 AD3d 789, 791 [2012]; Tribeca Lending Corp. v Correa, 92 AD3d 770, 771[2012]; Alterbaum v ShubertOrg., Inc., 80 AD3d 635, 636 [2011]).
In view of the absence of a reasonable excuse, it is unnecessary to consider whetherBAC sufficiently demonstrated the existence of a potentially meritorious defense to theaction (see Trepel v Greenman-Pedersen, Inc., 99 AD3d at 791; TribecaLending Corp. v Correa, 92 AD3d at 771; Alterbaum v Shubert Org., Inc., 80AD3d at 636). Skelos, J.P., Chambers, Maltese and Duffy, JJ., concur.