| Citimortgage, Inc. v Kowalski |
| 2015 NY Slip Op 05632 [130 AD3d 558] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v JosephKowalski et al., Appellants, et al., Defendants. |
Nicholas M. Moccia, P.C., Staten Island, N.Y., for appellants.
Akerman LLP, New York, N.Y. (Jordan M. Smith and Erica R. Stein of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Joseph Kowalski and ElainaKowalski appeal, as limited by their brief, from so much of an order of the SupremeCourt, Richmond County (Dollard, J.), dated February 21, 2014, as denied thosebranches of their motion which were pursuant to CPLR 317 to vacate an order ofreference of the same court dated July 9, 2012, entered upon their failure to appear oranswer the complaint, and pursuant to CPLR 3012 (d) to extend their time to serve ananswer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellants were not entitled to relief pursuant to CPLR 317, as they failed toshow that they did not receive notice of the action in time to defend themselves from it(see JP Morgan Chase Bank,N.A. v Russo, 121 AD3d 1048, 1050 [2014]; Chichester v Alal-Amin Grocery& Halal Meat, 100 AD3d 820, 821 [2012]). The mere denial of receipt ofthe summons and complaint is insufficient to establish a lack of actual notice for thepurpose of CPLR 317 (see Bankof N.Y. v Samuels, 107 AD3d 653, 654 [2013]; Wassertheil v Elburg, LLC, 94AD3d 753, 753 [2012]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83AD3d 1080, 1081-1082 [2011]).
Further, the Supreme Court properly denied that branch of the appellants' motionwhich was pursuant to CPLR 3012 (d) to extend their time to serve an answer. Adefendant who has failed to timely answer a complaint must provide a reasonable excusefor the delay and demonstrate a potentially meritorious defense to the action (see Deutsche Bank Trust Co. Ams.v Marous, 127 AD3d 1012 [2015]; Mannino Dev., Inc. v Linares, 117 AD3d 995 [2014]). Thedetermination of what constitutes a reasonable excuse lies within the sound discretion ofthe Supreme Court (seeMannino Dev., Inc. v Linares, 117 AD3d 995 [2014]). Here, the appellantsfailed to provide a reasonable excuse for the lengthy delay in seeking to answer thecomplaint (see Deutsche BankTrust Co. Ams. v Marous, 127 AD3d 1012 [2015]). As such, it is unnecessary todetermine whether the appellants demonstrated the existence of a potentially meritoriousdefense to the action (see id.).
Contrary to the appellants' contention, the plaintiff did not abandon the action byfailing to initiate proceedings for the entry of a default judgment of foreclosure and salewithin one [*2]year of their default (see CPLR3215 [c]; see also HSBC BankUSA, N.A. v Alexander, 124 AD3d 838, 839 [2015]; Klein v St. Cyprian Props.,Inc., 100 AD3d 711, 712 [2012]).
Accordingly, the Supreme Court properly denied the subject branches of theappellants' motion. Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.