| U.S. Bank N.A. v Alba |
| 2015 NY Slip Op 05933 [130 AD3d 715] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association,Respondent, v Glenn S. Alba, Appellant, et al.,Defendants. |
Glenn Alba, named herein as Glenn S. Alba, Islip, N.Y., appellant pro se.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, andHeather R. Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Glenn S. Alba appeals from anorder of the Supreme Court, Suffolk County (Hinrichs, J.), dated July 2, 2013, whichgranted the plaintiff's motion for leave to enter a default judgment and for theappointment of a referee to compute.
Ordered that the order is affirmed, with costs.
In this action to foreclose a mortgage, the appellant contends that the plaintiff'smotion for leave to enter a default judgment against him and for the appointment of areferee to compute should have been denied on the basis that the plaintiff failed to makethe motion within one year of his default in answering the complaint (see CPLR3215 [c]). This contention is not properly before this Court, as it was not raised beforethe Supreme Court (see GeneralMotors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005];Zeballos v Zeballos, 104 AD2d 1033 [1984]).
By submitting proof of service of the summons and complaint, proof of the factsconstituting the cause of action, and proof of the appellant's failure to appear or answer,the plaintiff demonstrated its entitlement to leave to enter a default judgment and for theappointment of a referee to compute (see CPLR 3215 [f]; U.S. Bank, N.A. v Razon, 115AD3d 739, 740 [2014]; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d804, 806 [2013]; Loaiza vGuzman, 111 AD3d 608, 609 [2013]).
To avoid the entry of a default judgment, a defendant must demonstrate a reasonableexcuse for the default and a potentially meritorious defense to the action (see King v King, 99 AD3d672, 672 [2012]; MercuryCas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102, 1102 [2009]; Allstate Ins. Co. v Austin, 48AD3d 720, 720 [2008]; cf.U.S. Bank N.A. v Stewart, 97 AD3d 740 [2012]; Deutsche Bank Natl. Trust Co. vLuden, 91 AD3d 701 [2012]; Fremont Inv. & Loan v Bertram, 90 AD3d 988[2011]; Citimortgage, Inc. vBrown, 83 AD3d 644, 645 [2011]). In this case, the appellant failed to profferany explanation for his failure to timely answer the complaint. Thus, it is unnecessary toconsider the issue of whether the appellant had a potentially meritorious defense to theaction (see Wells Fargo Bank vMalave, 107 AD3d 880 [2013]).
Accordingly, the Supreme Court correctly granted the plaintiff'smotion.
[*2] To the extent that the brief filedby the pro se appellant purports to also be on behalf of the defendant Corrine E. Alba, wenote that Corrine E. Alba is not an appellant, as no notice of appeal was filed on herbehalf. Dillon, J.P., Leventhal, Cohen and Maltese, JJ., concur.