| US Bank, N.A. v Samuel |
| 2016 NY Slip Op 03163 [138 AD3d 1105] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| US Bank, N.A., as Trustee for the BNC Mortgage LoanTrust 2006-1, 3476 Stateview Boulevard, Ft. Mill, SC 29715,Appellant, v Lillian Samuel, Respondent, et al.,Defendants. |
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, Heather R.Gushue, and Michael Shiba of counsel), for appellant.
Staten Island Legal Services, Staten Island, NY (Randi Scherman of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of theSupreme Court, Richmond County (Fusco, J.), dated December 17, 2013, which, ineffect, denied its motion for leave to enter a default judgment of foreclosure and sale and,pursuant to CPLR 2001 and 5019 (a), to substitute, nunc pro tunc, a newly signedaffidavit of merit and of the amount due in place of that which had been attached to theplaintiff's application for an order of reference, and to validate the order of reference, andgranted the cross motion of the defendant Lillian Samuel, in effect, to vacate her defaultin answering the complaint, to compel acceptance of her late answer, to dismiss thecomplaint insofar as asserted against her, inter alia, pursuant to CPLR 3211 (a), to vacatethe order of reference, to cancel the notice of pendency, and for an award of costs, and(2), as limited by its brief, from so much of an order of the same court dated March 21,2014, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated December 17, 2013, is dismissed, asthat order was superseded by the order dated March 21, 2014, made upon reargument;and it is further,
Ordered that the order dated March 21, 2014, is reversed insofar as appealed from,on the law, and, upon reargument, the order dated December 17, 2013, is vacated, theplaintiff's motion is granted, and the cross motion of the defendant Lillian Samuel isdenied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action in January 2008 through its then attorney ofrecord, Steven J. Baum, P.C. The defendants co-mortgagors, Lillian Samuel and CherylCancela, did not appear or answer the complaint, and on July 30, 2009, an order ofreference pursuant to RPAPL 1321 was entered. In April 2013, the plaintiff's substitutedcounsel moved for leave to enter a default judgment of foreclosure and sale and, pursuantto CPLR 2001 and 5019 (a), to substitute, nunc pro tunc, a newly signed affidavit ofmerit and of the amount due in place of the affidavit of merit and of the amount due thathad been attached to the plaintiff's application for an order of [*2]reference, and to validate the order of reference. Samuelcross-moved to vacate her default in answering the complaint, to compel acceptance ofher late answer, to dismiss the complaint insofar as asserted against her, inter alia,pursuant to CPLR 3211 (a), to vacate the order of reference, to cancel the notice ofpendency, and for an award of costs. The Supreme Court granted Samuel's cross motion"in its entirety" and, in effect, denied the plaintiff's motion. Upon reargument, the courtadhered to its prior determination.
A defendant seeking to vacate a default in appearing and answering a complaint mustshow both a reasonable excuse for the default and the existence of a potentiallymeritorious defense (see CPLR 5015 [a] [1]; SDF8 CBK, LLC v 689 St. Marks Ave., Inc., 131 AD3d1037 [2015]). Here, Samuel claimed that, when she received the summons andcomplaint, she telephoned the office of the plaintiff's attorney. An unidentified womanwho answered the telephone at the office of the plaintiff's counsel told her that sheneeded to contact the loan servicer and complete an application for a loan modification.Samuel claimed that she "trusted that the advice I was given from the plaintiff's lawyerwas complete," and made no claim that she was advised against serving an answer to thecomplaint or seeking independent counsel (cf. Estate of Witzigman v Drew, 48 AD3d 1172 [2008]; Citimortgage, Inc. v Patello, 35Misc 3d 1212[A], 2012 NY Slip Op 50662[U] [Sup Ct, Onondaga County 2012]).Samuel further claimed that she was not knowledgeable about the law, and she and theplaintiff had participated in settlement negotiations. Her claims did not constitute areasonable excuse for her failure to timely appear or answer the complaint (see HSBC Bank USA, N.A. vRotimi, 121 AD3d 855 [2014]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647[2014]; Chase Home Fin., LLCv Minott, 115 AD3d 634 [2014]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167 [2010]).Samuel's remaining contention as to whether the default should be vacated is withoutmerit.
Since Samuel failed to establish a reasonable excuse for her default, it is unnecessaryto consider whether she sufficiently demonstrated the existence of a potentiallymeritorious defense to the action (see Wells Fargo Bank, NA v Besemer, 131 AD3d 1047[2015]), including alleged lack of standing (see BAC Home Loans Servicing, LP v Reardon, 132 AD3d790, 791 [2015]). Accordingly, Samuel's cross motion should have been denied.
Moreover, the Supreme Court should have granted the plaintiff the relief ofsubstitution, nunc pro tunc, of a newly signed affidavit of merit and of the amount due inplace of the affidavit of merit and of the amount due that had been attached to theplaintiff's application for an order of reference, and validation of the order of reference(see Deutsche Bank Natl. TrustCo. v Lawson, 134 AD3d 760 [2015]; U.S. Bank N.A. v Eaddy, 109 AD3d 908, 909 [2013]).Further, the plaintiff satisfied the requirements for entry of a default judgment offoreclosure and sale. Accordingly, upon reargument, the Supreme Court should havegranted the plaintiff's motion. Rivera, J.P., Sgroi, Miller and Hinds-Radix, JJ.,concur.