| Wells Fargo Bank, NA v Besemer |
| 2015 NY Slip Op 06806 [131 AD3d 1047] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, Respondent, v DoryAnn Besemer, Appellant, et al., Defendants. |
Walsh & Roth, LLP, West Babylon, N.Y. (David I. Roth of counsel), forappellant.
Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Siobhan A. Nolan ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Dory Ann Besemer appeals (1)from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 23,2014, which denied her motion pursuant to CPLR 5015 (a) to vacate a judgment offoreclosure and sale of the same court entered January 8, 2014, upon her failure to appearor answer the complaint, and (2), as limited by her brief, from so much of an order of thesame court dated January 21, 2015, as, upon reargument, adhered to the originaldetermination in the order dated September 23, 2014.
Ordered that the appeal from the order dated September 23, 2014, is dismissed, asthat order was superseded by the order dated January 21, 2015, made upon reargument;and it is further,
Ordered that the order dated January 21, 2015, is affirmed insofar as appealed from;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, Wells Fargo Bank, NA (hereinafter the Bank), commenced this actionto foreclose a mortgage after the defendant Dory Ann Besemer (hereinafter thehomeowner) stopped making monthly payments. After the homeowner failed to appearor answer the complaint, the Supreme Court entered a judgment of foreclosure and saleupon her default. Just prior to the judicial sale of the property, the homeowner movedpursuant to CPLR 5015 (a) (1) and (4) to vacate the judgment of foreclosure and sale. Inan order dated September 23, 2014, the court denied the homeowner's motion. Thehomeowner thereafter moved for leave to reargue her prior motion. In an order datedJanuary 21, 2015, made upon reargument, the court adhered to the original determinationin the order dated September 23, 2014.
When a defendant seeking to vacate a default judgment raises a jurisdictionalobjection pursuant to CPLR 5015 (a) (4) and also seeks a discretionary vacatur pursuantto CPLR 5015 (a) (1), a court is required to resolve the jurisdictional question beforedetermining whether it is appropriate to grant a discretionary vacatur of the default underCPLR 5015 (a) (1) (seeEmigrant [*2]Mtge. Co., Inc. v Westervelt, 105AD3d 896, 897 [2013]; Roberts v Anka, 45 AD3d 752, 753 [2007]). Here, thehomeowner contends that she was not properly served with the summons and complaintby affix and mail service pursuant to CPLR 308 (4). In particular, the homeowner assertsthat the Bank did not exercise due diligence in attempting to personally deliver thesummons and complaint to her or to serve her by the deliver and mail method beforeresorting to affix and mail service.
Service pursuant to CPLR 308 (4) may be used only where personal service underCPLR 308 (1) and (2) cannot be made with due diligence (see CPLR 308 [4]; Deutsche Bank Natl. Trust Co. vWhite, 110 AD3d 759, 759-760 [2013]; Estate of Waterman v Jones, 46 AD3d 63, 65 [2007]). Theterm "due diligence," which is not defined by statute, has been interpreted and applied ona case-by-case basis (see Estate of Waterman v Jones, 46 AD3d at 66). Indeed,the Court of Appeals has stated that "in determining the question of whether duediligence has been exercised, no rigid rule could properly be prescribed" (Barnes vCity of New York, 51 NY2d 906, 907 [1980]). As a general matter, the "duediligence" requirement may be met with "a few visits on different occasions and atdifferent times to the defendant's residence or place of business when the defendantcould reasonably be expected to be found at such location at those times" (Estate ofWaterman v Jones, 46 AD3d at 66; see Deutsche Bank Natl. Trust Co. vWhite, 110 AD3d at 760).
Here, the affidavit of the process server demonstrated that three visits were made tothe homeowner's residence on three different occasions and at different times, when thehomeowner could reasonably have been expected to be found at that location (see JP Morgan Chase Bank, N.A. vBaldi, 128 AD3d 777 [2015]; Lemberger v Khan, 18 AD3d 447, 447-448 [2005]; seegenerally Estate of Waterman v Jones, 46 AD3d at 65). The process server alsodescribed in detail his unsuccessful attempt to obtain an employment address for thehomeowner (see JP MorganChase Bank, N.A. v Baldi, 128 AD3d 777 [2015]; cf. Leviton v Unger, 56 AD3d731, 732 [2008]; County ofNassau v Long, 35 AD3d 787, 788 [2006]). Contrary to the homeowner'scontention, under these circumstances, the due diligence requirement was satisfied(see Barnes v City of New York, 51 NY2d at 907; JP Morgan Chase Bank, N.A. vBaldi, 128 AD3d 777 [2015]; Estate of Waterman v Jones, 46 AD3d at65). Accordingly, the Supreme Court properly denied that branch of the homeowner'smotion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a) (4).
The Supreme Court also properly denied that branch of the homeowner's motionwhich was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015 (a) (1)."A party seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate areasonable excuse for [his or her] delay in appearing and answering the complaint and apotentially meritorious defense to the action" (Wells Fargo Bank, N.A. v Mazzara, 124 AD3d 875, 875[2015]; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]). "The determination of what constitutes a reasonable excuse for a default lieswithin the sound discretion of the Supreme Court" (Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d903, 904 [2008]).
Here, the homeowner's contentions that she had little understanding of the legalprocess and had no appreciation of the imminent sale do not constitute reasonableexcuses for her default in appearing or answering the complaint (see e.g. U.S. Bank N.A. vSlavinski, 78 AD3d 1167, 1167-1168 [2010]; Dorrer v Berry, 37 AD3d519, 520 [2007]). Furthermore, the homeowner's purported reliance upon allegedloan modification negotiations is unsubstantiated and does not constitute a reasonableexcuse (see e.g. Deutsche BankNatl. Trust Co. v Gutierrez, 102 AD3d 825, 825 [2013]; DeRisi vSantoro, 262 AD2d 270, 271 [1999]). Since the homeowner failed to establish areasonable excuse for her default, it is unnecessary to consider whether she sufficientlydemonstrated the existence of a potentially meritorious defense to the action (seeDeutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d at 825). Rivera, J.P., Balkin,Miller and LaSalle, JJ., concur.