| US Bank N.A. v Smith |
| 2015 NY Slip Op 07646 [132 AD3d 848] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, as Trustee for MASTRAsset-Backed Securities Trust 2006-WMC2, 3476 State View Boulevard, Ft. Mill, SC29715, Respondent, v Althea Smith et al., Appellants, et al.,Defendants. |
Althea Smith and Stephen Smith, Springfield, N.Y., appellants 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 defendants Althea Smith and Stephen Smithappeal, as limited by their brief, from (1) so much of an order of the Supreme Court,Queens County (James J. Golia, J.), dated April 11, 2013, as granted those branches ofthe plaintiff's motion which were to hold them in default upon their failure to appear oranswer the complaint and for an order of reference, and (2) so much of an order of thesame court dated October 8, 2013, as denied those branches of their motion which werefor leave to renew and reargue their opposition to those branches of the plaintiff's motionwhich were to hold them in default upon their failure to appear or answer the complaintand for an order of reference, and, in effect, pursuant to CPLR 5015 (a) to vacate theirdefault in appearing or answering the complaint.
Ordered that the order dated April 11, 2013, is affirmed insofar as appealed from;and it is further,
Ordered that the appeal from so much of the order dated October 8, 2013, as deniedthat branch of the motion of the defendants Althea Smith and Stephen Smith which wasfor leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Bank of N.Y. v Waters,127 AD3d 1005 [2015]); and it is further,
Ordered that the order dated October 8, 2013, is affirmed insofar as reviewed; and itis further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage against, among others,the defendants Althea Smith and Stephen Smith (hereinafter together the appellants).According to affidavits of service, the appellants were served by personal delivery ofcopies of the summons and complaint upon Althea Smith at the appellants' residence onOctober 8, 2009, followed by a mailing of copies of the summons and complaint to thataddress. The appellants did not timely appear or answer the complaint. In November2012, the plaintiff moved, inter alia, to hold the appellants in default upon their failure toappear or answer the complaint and for an order of reference. In an order [*2]dated April 11, 2013, insofar as relevant here, the SupremeCourt granted those branches of the plaintiff's motion. In June 2013, the appellantsmoved, inter alia, for leave to renew and reargue their opposition to those branches of theplaintiff's motion and, in effect, pursuant to CPLR 5015 (a) to vacate their default inappearing or answering the complaint. In an order dated October 8, 2013, the SupremeCourt denied those branches of the appellants' motion.
Contrary to the appellants' contention, the Supreme Court properly granted thosebranches of the plaintiff's motion which were to hold the appellants in default upon theirfailure to appear or answer the complaint and for an order of reference. In support of itsmotion, the plaintiff submitted, inter alia, an affidavit of merit from a representative of itsservicing agent, accompanied by a power of attorney demonstrating the authority of theagent to act on behalf of the plaintiff (see U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]; cf. HSBC Bank USA, N.A. vBetts, 67 AD3d 735, 736 [2009]), which set forth the facts establishing theclaim, including that the plaintiff was the holder of the mortgage and note and that theappellants defaulted thereon, and proof that the appellants failed to answer within thetime allowed (see US BankN.A. v Flowers, 128 AD3d 951 [2015]; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226[2014]; Bank of N.Y. vCepeda, 120 AD3d 451 [2014]).
Furthermore, the Supreme Court properly denied that branch of the appellants'motion which was for leave to renew their opposition to the plaintiff's motion, since theyasserted no new facts in support of their motion (see Dimery v Ulster Sav. Bank, 116 AD3d 731 [2014]; Blackburn v Wysong & MilesCo., 11 AD3d 421, 423 [2004]).
Additionally, the Supreme Court properly denied that branch of the appellants'motion which was, in effect, pursuant to CPLR 5015 (a) to vacate their default inappearing or answering the complaint. The appellants failed to demonstrate theirentitlement to vacatur pursuant to CPLR 5015 (a) (4) for lack of personal jurisdiction.The plaintiff submitted affidavits of service establishing, prima facie, that the appellantswere properly served pursuant to CPLR 308 (1) and (2) (see Summitbridge Credit Invs.,LLC v Wallace, 128 AD3d 676, 677 [2015]; Community W. Bank, N.A. v Stephen, 127 AD3d 1008,1009 [2015]). The appellants' bare and unsubstantiated denial of service lacked thefactual specificity and detail required to rebut the prima facie proof of proper service setforth in the affidavits of service (see Community W. Bank, N.A. v Stephen, 127AD3d at 1009; Deutsche BankNatl. Trust Co. v Pietranico, 102 AD3d 724 [2013]). Further, contrary to theappellants' contention, lack of standing is not a defect that deprives a court of subjectmatter jurisdiction for purposes of CPLR 5015 (a) (4) (see U.S. Bank, N.A. v Peters,127 AD3d 742, 743 [2015]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810[2012]).
The appellants also failed to demonstrate their entitlement to vacatur pursuant toCPLR 5015 (a) (1), since the only excuse they proffered was that they were not servedwith process. Thus, they failed to establish a reasonable excuse for their default (seeSummitbridge Credit Invs., LLC v Wallace, 128 AD3d at 677; Community W.Bank, N.A. v Stephen, 127 AD3d at 1009; Bank of N.Y. v Samuels, 107 AD3d 653 [2013]). Theabsence of a reasonable excuse renders it unnecessary to determine whether theappellants demonstrated the existence of a potentially meritorious defense to the action(see U.S. Bank N.A. vHasan, 126 AD3d 683, 684 [2015]; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824[2011]).
Further, the appellants failed to establish that the plaintiff engaged in any fraud,misrepresentation, or other misconduct warranting vacatur of the judgment pursuant toCPLR 5015 (a) (3). The appellants could not obtain vacatur of the judgment pursuant toCPLR 5015 (a) (3) merely by alleging fraud in the underlying transaction (see Rossrock Fund II, L.P. v NorlinCorp., 128 AD3d 1046, 1047 [2015]; Cofresi v Cofresi, 198 AD2d 321[1993]).
The appellants' remaining contentions are either without merit or not properly beforethis Court. Dillon, J.P., Miller, Maltese and LaSalle, JJ., concur.