| Bank of N.Y. Mellon v Colucci |
| 2016 NY Slip Op 03129 [138 AD3d 1047] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, for the CertificateholdersAlternative Loan Trust 2007-11T1 Mortgage Pass-Through Certificate, Series2007-11T1, Respondent, v Donald Colucci, Appellant, et al.,Defendant. |
Frederick P. Stern, P.C., Islip, NY, for appellant.
Bryan Cave LLP, New York, NY (Suzanne M. Berger and Ronald Joshua Bliss ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Donald Colucci appeals from anorder of the Supreme Court, Suffolk County (Farneti, J.), dated September 12, 2012,which denied his motion, inter alia, for leave to interpose a late answer.
Ordered that the order is affirmed, with costs.
"To extend the time to answer the complaint and to compel the plaintiff to accept anuntimely answer as timely, a defendant must provide a reasonable excuse for the delayand demonstrate a potentially meritorious defense to the action" (Mannino Dev., Inc. v Linares,117 AD3d 995, 995 [2014]; see CPLR 3012 [d]; 5015 [a] [1]; U.S. Bank N.A. v Sachdev,128 AD3d 807 [2015]; OneW. Bank, FSB v Valdez, 128 AD3d 655 [2015]; HSBC Bank USA, N.A. vLafazan, 115 AD3d 647, 648 [2014]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d890, 890 [2010]). "The determination of what constitutes a reasonable excuse lieswithin the sound discretion of the Supreme Court" (BAC Home Loans Servicing, LP v Reardon, 132 AD3d790, 791 [2015]; see U.S. Bank N.A. v Sachdev, 128 AD3d at 807-808;One W. Bank, FSB v Valdez, 128 AD3d at 655; Maspeth Fed. Sav. &Loan Assn. v McGown, 77 AD3d at 890). Although a court has the discretion toaccept law office failure as a reasonable excuse (see CPLR 2005), "a conclusory,undetailed, and uncorroborated claim of law office failure does not amount to areasonable excuse" (White vDaimler Chrysler Corp., 44 AD3d 651, 651 [2007]; see People's United Bank v LatiniTuxedo Mgt., LLC, 95 AD3d 1285, 1286 [2012]; Ogunmoyin v 1515 Broadway FeeOwner, LLC, 85 AD3d 991, 992 [2011]; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 637[2006]).
Here, the Supreme Court providently exercised its discretion in rejecting theunsubstantiated explanation of the defendant Donald Colucci (hereinafter the defendant)that lawyers he consulted, but apparently did not retain, had advised him not to answerthe complaint. A defendant's claim that his attorney "apparently made an erroneousassumption regarding the need to answer the complaint does not constitute a validexcuse" (White v Daimler Chrysler Corp., 44 AD3d at 652; see Paulus v Christopher Vacirca,Inc., 128 AD3d 116, 119 [2015]; Everything Yogurt v Toscano, 232AD2d 604, 606 [1996]). At most, the advice, and the defendant's decision to follow it,[*2]constituted a "misguided strategy," not law officefailure (OCE Bus. Sys. v Sopher & Co., 186 AD2d 464, 464 [1992]). Asecond excuse, based on a purported change in law, raised for the first time on appeal, isnot properly before this Court (see Millennium BCPBank, N.A. v Kal-Pak Realty, LLC, 99AD3d 976, 978-979 [2012]).
Since the defendant failed to establish a reasonable excuse for his default, it is notnecessary to determine whether he demonstrated a potentially meritorious defense to theaction (see Morgan StanleyMtge. Loan Trust 2006-17XS v Waldman, 131 AD3d 1140, 1141 [2015]; SDF8 CBK, LLC v 689 St. MarksAve., Inc., 131 AD3d 1037, 1038 [2015]; HSBC Bank USA, N.A. vLafazan, 115 AD3d at 648; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790[2011]).
The defendant's remaining contentions are without merit. Rivera, J.P., Miller,Hinds-Radix and LaSalle, JJ., concur.