| Morgan Stanley Mtge. Loan Trust 2006-17XS vWaldman |
| 2015 NY Slip Op 06901 [131 AD3d 1140] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Morgan Stanley Mortgage Loan Trust 2006-17XS, asTrustee, Appellant, v Joel Waldman, Respondent, et al.,Defendants. |
Fein Such & Crane, LLP (D.J. & JA. Cirando, Syracuse, N.Y. [John A.Cirando, Bradley E. Keem, and Elizabeth deV. Moeller], of counsel), for appellant.
Berg & David, PLLC, Brooklyn, N.Y. (David Berg and Abraham David ofcounsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Baynes, J.), dated June 15, 2013, which granted themotion of the defendant Joel Waldman, in effect, to vacate his default in appearing oranswering and to dismiss the complaint pursuant to CPLR 3211 (a) (3) and 3215 (c).
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, and the motion is denied.
The plaintiff commenced this action to foreclose a mortgage after the borrower, thedefendant Joel Waldman, defaulted on his residential mortgage loan for the subjectpremises. Waldman does not dispute that he was served with a summons and complainton or about September 14, 2010, and that he did not timely appear or answer. Thesummons warned Waldman that failure to serve an answer may result in entry of adefault judgment, stated "you can lose your home," and advised him to speak to anattorney.
Upon application by the plaintiff, the Supreme Court issued an order of referencedated August 16, 2012. The order recited that no answer had been interposed and thetime to answer had expired. On October 25, 2012, Waldman submitted an untimelyanswer, which the plaintiff rejected on November 7, 2012.
By order to show cause dated December 5, 2012, Waldman moved, in effect, tovacate his default in appearing or answering and to dismiss the complaint pursuant toCPLR 3211 (a) (3) and 3215 (c). The Supreme Court granted that branch of the motionwhich was, in effect, to vacate the default in answering or appearing, and those branchesof the motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (3) forlack of standing and to dismiss the complaint pursuant to CPLR 3215 (c). The plaintiffappeals. We reverse.
[*2] A defendant seekingto vacate a default in answering a complaint must show both a reasonable excuse for thedefault and the existence of a potentially meritorious defense (see CPLR 3012[d]; Chase Home Fin., LLC vMinott, 115 AD3d 634, 634 [2014]; Community Preserv. Corp. v Bridgewater Condominiums, LLC,89 AD3d 784, 785 [2011]). Here, Waldman failed to establish a reasonable excusefor his default (see Chase Home Fin., LLC v Minott, 115 AD3d at 634; HSBC Bank USA, N.A. vLafazan, 115 AD3d 647, 648 [2014]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167 [2010]).Furthermore, the summons contained express warnings to answer the complaint and tospeak to an attorney (see Chase Home Fin., LLC v Minott, 115 AD3d at 634-635;HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 647). Because Waldman failedto establish a reasonable excuse for his default, it is not necessary to determine whetherhe demonstrated a potentially meritorious defense to this action (see HSBC BankUSA, N.A. v Lafazan, 115 AD3d at 648; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790[2011]).
Waldman's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied Waldman's motion, in effect, tovacate his default and dismiss the complaint. Leventhal, J.P., Dickerson, Roman andHinds-Radix, JJ., concur.