| PHH Mtge. Corp. v Muricy |
| 2016 NY Slip Op 00168 [135 AD3d 725] |
| January 13, 2016 |
| Appellate Division, Second Department |
[*1]
| PHH Mortgage Corporation,Respondent, v Juliana Muricy, Appellant, et al.,Defendants. |
Nicholas M. Moccia, P.C., Staten Island, NY, for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Austin T. Shufelt of counsel),for respondent.
In an action to foreclose a mortgage, the defendant Juliana Muricy appeals, as limitedby her brief, from so much of an order of the Supreme Court, Richmond County(Dollard, J.), dated September 19, 2014, as denied those branches of her motion whichwere pursuant to CPLR 317 and 5015 (a) (1) to vacate a judgment of foreclosure and saleof the same court dated June 6, 2013, upon her default in answering the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In October 2005, the plaintiff loaned $272,000 to the defendant Juliana Muricy(hereinafter the defendant). The loan was evidenced by a 30-year fixed rate note executedby the defendant and was secured by a mortgage on the defendant's real property locatedat 6 Greentree Lane in Staten Island (hereinafter the subject property). Paragraph 15 ofthe mortgage contained a provision stating that the address to which notices would besent was the address of the subject property unless the defendant notified the lender of adifferent address. The defendant also agreed to notify the lender of any change ofaddress. Starting in or about June 2009, the defendant defaulted in her monthly paymentsunder the mortgage. In or about August 2010, unbeknownst to the plaintiff, thedefendant moved to Brazil where she remained until May 2014. In November 2010, theplaintiff commenced this action to foreclose the mortgage. The Supreme Court (Fusco,J.) signed an order dated October 21, 2011, allowing service by publication. Thereafter,the plaintiff moved for an order of reference and for a default judgment of foreclosureand sale. In an order dated June 11, 2012, the Supreme Court granted the motion andappointed a referee to compute the amount due the plaintiff on the note and mortgage.The plaintiff obtained a judgment of foreclosure and sale dated June 6, 2013. Thedefendant subsequently moved, inter alia, to vacate the judgment of foreclosure and sale.The Supreme Court denied the defendant's motion. The defendant appeals from so muchof the order as denied those branches of her motion which were pursuant to CPLR 317and 5015 (a) (1) to vacate the judgment of foreclosure and sale.
Pursuant to CPLR 317, a defendant who has been "served with a summons otherthan by personal delivery" but who has not appeared may be allowed to defend the actionupon a finding [*2]by the court that the defendant "didnot personally receive notice of the summons in time to defend and has a meritoriousdefense" (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138,141 [1986]; Citimortgage, Inc. vFinocchiaro, 131 AD3d 503, 503-504 [2015]). In support of her motion tovacate the default judgment of foreclosure and sale, the defendant submitted an affidavitin which she averred that she had not been served with a default notice as required by themortgage. This conclusory assertion was insufficient to demonstrate a potentiallymeritorious defense (see CPLR 3015 [a]; Deutsche Bank Trust Co. Ams. v Shields, 116 AD3d 653,654 [2014]). The defendant also asserts that she has a potentially meritorious defensebased upon the plaintiff's failure to serve her with the 90-day notice required by RPAPL1304. Service of such notice is a condition precedent to the commencement of amortgage foreclosure action (seeWells Fargo Bank, N.A. v Moza, 129 AD3d 946, 947 [2015]). In support of hermotion to vacate the default judgment of foreclosure and sale, the defendant included, asan exhibit, the judgment of foreclosure and sale, and the papers the plaintiff submitted insupport of its motion to obtain that judgment. The plaintiff's papers in support of itsmotion included an affidavit of an assistant vice-president of the plaintiff and copies ofthe notice and certified mail receipt, as well as a "proof of filing statement" filed with theNew York State Banking Department pursuant to RPAPL 1306. Although, in heraffidavit in support of her motion to vacate, the defendant avers that she never receivedthe 90-day notice, the defendant failed to rebut the plaintiff's evidence of mailing (seeWells Fargo Bank, N.A. v Moza, 129 AD3d at 947). Furthermore, the fact that thedefendant left the United States in or about August 2010, after having been in default ofher mortgage payments for over one year, i.e. since June of 2009, and did not return until2014, raised an inference that she deliberately attempted to avoid notice of the action (see Canelas v Flores, 112AD3d 871, 872 [2013]). Therefore, the defendant's contention that the plaintifffailed to serve her with the 90-day notice required by RPAPL 1304 fails to demonstrate apotentially meritorious defense.
" 'A party seeking to vacate a default pursuant to CPLR 5015 (a) (1) mustdemonstrate a reasonable excuse for [his or her] delay in appearing and answering thecomplaint and a potentially meritorious defense to the action' " (Wells Fargo Bank, NA vBesemer, 131 AD3d 1047, 1049 [2015]; quoting Wells Fargo Bank, N.A. vMazzara, 124 AD3d 875, 875 [2015]). Here, the defendant failed to meet herburden of demonstrating a reasonable excuse for her default. The plaintiff submittedaffidavits of service establishing, prima facie, that the defendant was served bypublication, as directed by the Supreme Court, pursuant to CPLR 316. While arguing that"hostile tenants" at the subject property failed to inform her of the pendency of thisaction, the defendant fails to acknowledge that she had an obligation under the mortgageto notify the plaintiff of a change of address but failed to do so.
For the same reasons that the defendant failed to demonstrate a potentiallymeritorious defense in support of that branch of her motion which was to vacate thejudgment under CPLR 317, she also failed to demonstrate a potentially meritoriousdefense with respect to that branch of her motion which was to vacate the judgment offoreclosure and sale pursuant to CPLR 5015 (a) (1).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied those branches of the defendant'smotion which were pursuant to CPLR 317 and 5015 (a) (1) to vacate the judgment offoreclosure and sale. Dillon, J.P., Austin, Roman and Barros, JJ., concur.