| Deutsche Bank Natl. Trust Co. v Patrick |
| 2016 NY Slip Op 01288 [136 AD3d 970] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Appellant, v Oral C. Patrick, Respondent, et al.,Defendants. |
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and LeahN. Jacob of counsel), for appellant.
Cabanillas & Associates, P.C., White Plains, NY (Patricia M. Lattanzio andNathan L. Mendenhall of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Dear, J.), dated November 6, 2013, which denied itsmotion for leave to enter a default judgment against the defendants and for an order ofreference, and granted the cross motion of the defendant Oral C. Patrick to vacate hisdefault in answering the complaint and to dismiss the complaint insofar as assertedagainst him for failure to comply with the notice provisions of the mortgage.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion forleave to enter a default judgment against the defendants and for an order of reference isgranted, and the cross motion of the defendant Oral C. Patrick to vacate his default inanswering the complaint and to dismiss the complaint insofar as asserted against him isdenied.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, themovant is required to submit proof of service of the summons and complaint, proof ofthe facts constituting the claim, and proof of the defaulting party's default in answeringor appearing" (BAC HomeLoans Servicing, LP v Reardon, 132 AD3d 790 [2015] [internal quotationmarks omitted]; see CPLR 3215 [f]; U.S. Bank N.A. v Poku, 118 AD3d 980, 981 [2014]; Diederich v Wetzel, 112 AD3d883 [2013]; Green TreeServicing, LLC v Cary, 106 AD3d 691, 692 [2013]). Here, the plaintiff met allof these requirements. "The affidavits of service proffered by the plaintiff constituteprima facie evidence of proper service of the summons and complaint upon thedefendants" (U.S. Bank N.A. v Poku, 118 AD3d at 981; see Carver Fed. Sav. Bank vSupplice, 109 AD3d 572 [2013]; Deutsche Bank Natl. Trust Co. v Jagroop, 104 AD3d 723,724 [2013]; Bank of N.Y. vEspejo, 92 AD3d 707, 708 [2012]). Further, the affirmation of counsel and theaffidavit of the plaintiff's servicing agent, together with the power of attorneydemonstrating the authority of the agent to act on behalf of the plaintiff, provided proofof the facts constituting the claim, and proof of the defendants' default in answering thecomplaint (see CPLR 3215 [f]; U.S. Bank N.A. v Poku, 118 AD3d at981; Green Tree Servicing, LLC v Cary, 106 AD3d at 692; CWCapital Asset Mgt., LLC vGreat Neck Towers, LLC, 99 AD3d 850, 851 [2012]; Aames Capital Corp.[*2]v Ford, 294 AD2d 134 [2002]).
To defeat the plaintiff's facially adequate CPLR 3215 motion, and to be relieved ofhis default in answering the complaint, the defendant mortgagor, Oral C. Patrick(hereinafter the defendant), had to establish that he had a reasonable excuse for hisdefault and a potentially meritorious defense to the action (see Diederich vWetzel, 112 AD3d at 884; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]; Wassertheil v Elburg, LLC, 94AD3d 753 [2012]). "The determination of what constitutes a reasonable excuse lieswithin the sound discretion of the Supreme Court" (Deutsche Bank Trust Co. Ams. v Marous, 127 AD3d 1012,1012 [2015]; see BAC Home Loans Servicing, LP v Reardon, 132 AD3d at 790;Mannino Dev., Inc. vLinares, 117 AD3d 995 [2014]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d889, 890 [2010]). Here, the Supreme Court determined that the defendant hadoffered no reasonable excuse for his failure to serve a timely answer in the action. As thisdetermination was a provident exercise of discretion, it was unnecessary to considerwhether the defendant sufficiently demonstrated the existence of a potentiallymeritorious defense (see BAC Home Loans Servicing, LP v Reardon, 132 AD3dat 790; HSBC Bank USA, N.A.v Lafazan, 115 AD3d 647, 648 [2014]; Maspeth Fed. Sav. & LoanAssn. v McGown, 77 AD3d at 890). Accordingly, the Supreme Court should havegranted the plaintiff's motion for leave to enter a default judgment against the defendantsand for an order of reference, and should have denied the defendant's cross motion tovacate his default in answering the complaint and to dismiss the complaint insofar asasserted against him (see Green Tree Servicing, LLC v Cary, 106 AD3d at692).
In light of our determination, we need not reach the parties' remaining contentions.Dillon, J.P., Hall, Roman and Duffy, JJ., concur.