| U.S. Bank N.A. v Wolnerman |
| 2016 NY Slip Op 00356 [135 AD3d 850] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for CreditSuisse First Boston MBS 2004-AR7, Appellant, v Michelle Wolnerman et al.,Respondents, et al., Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F.Battista of counsel), for appellant.
South Brooklyn Legal Services, Brooklyn, NY (Johnson M. Tyler and Meghan Fauxof counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Jacobson, J.), dated August28, 2014, as denied those branches of its motion which were for leave to enter judgmentagainst the defendants, upon their failure to appear or answer the complaint, and for anorder of reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the plaintiff's motion which were for leave to enter judgmentagainst the defendants, upon their failure to appear or answer the complaint, and for anorder of reference are granted.
The Supreme Court erred in denying those branches of the plaintiff's motion whichwere for leave to enter judgment against the defendants, upon their failure to appear oranswer the complaint, and for an order of reference. " 'An applicant for a defaultjudgment against a defendant must submit proof of service of the summons andcomplaint, proof of the facts constituting the claim, and proof of the defaultingdefendant's failure to answer or appear' " (US Bank N.A. v Dorestant, 131 AD3d 467, 469 [2015],quoting U.S. Bank, N.A. vRazon, 115 AD3d 739, 740 [2014]; see CPLR 3215 [f]; Citimortgage, Inc. v Chow MingTung, 126 AD3d 841, 843 [2015]; U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]). Here,in support of its motion, the plaintiff satisfied these requirements (see U.S. Bank,N.A. v Razon, 115 AD3d at 740).
"To defeat a facially adequate CPLR 3215 motion, a defendant must show either thatthere was no default, or that it has a reasonable excuse for its delay and a potentiallymeritorious defense" (Fried vJacob Holding, Inc., 110 AD3d 56, 60 [2013]; see US Bank N.A. vDorestant, 131 AD3d at 470; Wassertheil v Elburg, LLC, 94 AD3d 753, 753 [2012]). Inopposition to the plaintiff's motion, the defendants Michelle Wolnerman and Jason Friedfailed to demonstrate that they did not default, or that they had a reasonable excuse fortheir default.
[*2] To the extent that theSupreme Court found, in effect, that the plaintiff failed to timely move for leave to enterjudgment, such determination was error (see generally CPLR 3215 [c]; USBank N.A. v Dorestant, 131 AD3d at 469; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838[2015]).
In addition, the Supreme Court should have granted that branch of the plaintiff'smotion which was for an order of reference (see RPAPL 1321; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d 566, 568 [2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]).
Accordingly, the Supreme Court should have granted those branches of the plaintiff'smotion which were for leave to enter judgment against the defendants, upon their failureto appear or answer the complaint, and for an order of reference. Mastro, J.P., Rivera,Leventhal and Duffy, JJ., concur.