| TCIF REO GCM, LLC v Walker |
| 2016 NY Slip Op 03491 [139 AD3d 704] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| TCIF REO GCM, LLC, Plaintiff, v RichardWalker, Respondent, et al., Defendants. Random Properties Acquisition Corp. III,Nonparty Appellant. |
Knuckles, Komosinski & Elliott LLP, Elmsford, NY (Michel Lee of counsel),for nonparty appellant.
Law Office of Yuriy Moshes, P.C., Brooklyn, NY (Rebecca Carmen of counsel), forrespondent.
In an action to foreclose a mortgage, the nonparty Random Properties AcquisitionCorp. III appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Edwards, J.), dated September 29, 2014, as denied its motion for leave toenter a default judgment against the defendants upon their failure to appear or answer thecomplaint, for an order of reference, and to amend the caption to substitute itself as theplaintiff and Shelly Buchanan and Jonathan Strong as defendants instead of thedefendants sued as "Jane Doe" and "John Doe," and granted that branch of the crossmotion of the defendant Richard Walker which was pursuant to CPLR 3012 (d) to extendhis time to answer the complaint and to compel acceptance of service of the answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,the motion of the nonparty Random Properties Acquisition Corp. III for leave to enter adefault judgment against the defendants upon their failure to appear or answer thecomplaint, for an order of reference, and to amend the caption to substitute itself as theplaintiff and Shelly Buchanan and Jonathan Strong as defendants instead of thedefendants sued as "Jane Doe" and "John Doe" is granted, and that branch of the crossmotion of the defendant Richard Walker which was pursuant to CPLR 3012 (d) to extendhis time to answer the complaint and to compel acceptance of service of the answer isdenied.
In this mortgage foreclosure action, the nonparty Random Properties AcquisitionCorp. III (hereinafter RPAC) moved for leave to enter a default judgment against thedefendants upon their failure to answer the complaint, for an order of reference, and toamend the caption to substitute itself as the plaintiff and Shelly Buchanan and JonathanStrong as defendants instead of the defendants sued as "Jane Doe" and "John Doe." Thedefendant Richard Walker cross-moved, inter alia, pursuant to CPLR 3012 (d) to extendhis time to answer the complaint and to compel acceptance of service of that answer. Inthe order appealed from, the Supreme Court, inter alia, denied RPAC's motion andgranted that branch of Walker's cross motion which was pursuant to CPLR 3012 (d) toextend his time to answer the complaint and to compel acceptance of service of theanswer. We reverse the order insofar as appealed from, grant RPAC's motion, and denythat branch of Walker's cross motion.
[*2] TheSupreme Court should have denied that branch of Walker's cross motion which waspursuant to CPLR 3012 (d) to extend his time to answer the complaint and to compelacceptance of service of that answer. "A defendant who has failed to timely answer acomplaint must provide a reasonable excuse for the delay and demonstrate a potentiallymeritorious defense to the action" (Citimortgage, Inc. v Kowalski, 130 AD3d 558, 558 [2015];see Deutsche Bank Trust Co.Ams. v Marous, 127 AD3d 1012 [2015]; Mannino Dev., Inc. v Linares, 117 AD3d 995 [2014]).Here, Walker failed to establish a reasonable excuse. Walker's submissions did not rebutthe prima facie proof of proper service set forth in the affidavit of service. Since Walkerfailed to demonstrate a reasonable excuse, it is unnecessary to consider whether hesufficiently demonstrated the existence of a potentially meritorious defense (see Aurora Loan Servs., LLC vLucero, 131 AD3d 496, 497 [2015]; Emigrant Bank v O. Carl Wiseman, 127 AD3d 1013, 1014[2015]; HSBC Bank USA, N.A.v Rotimi, 121 AD3d 855, 856 [2014]).
Additionally, the Supreme Court should have granted RPAC's motion for leave toenter a default judgment against the defendants upon their failure to appear or answer thecomplaint, for an order of reference, and to amend the caption to substitute itself as theplaintiff and Shelly Buchanan and Jonathan Strong as defendants instead of thedefendants sued as "Jane Doe" and "John Doe." "On a motion for leave to enter a defaultjudgment pursuant to CPLR 3215, the movant is required to submit proof of service ofthe summons and complaint, proof of the facts constituting the claim, and proof of thedefaulting party's default in answering or appearing" (BAC Home Loans Servicing, LP v Reardon, 132 AD3d790, 790 [2015] [internal quotation marks omitted]; see CPLR 3215 [f]).Here, RPAC met these requirements by submitting, inter alia, the affidavit of itsservicing agent, a limited power of attorney, the note, and affidavits of service (see e.g. U.S. Bank N.A. vPoku, 118 AD3d 980, 981 [2014]). Further, RPAC submitted evidence that theplaintiff's interest in the note was assigned to RPAC subsequent to the commencement ofthis action (cf. Maspeth Fed.Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750, 751 [2009]). RPAC alsosubmitted evidence that Shelly Buchanan and Jonathan Strong were cotenants inpossession of a portion of the mortgaged premises, and that they were served withprocess (cf. Deutsche BankNatl. Trust Co. v Islar, 122 AD3d 566, 568 [2014]). Dillon, J.P., Leventhal,Chambers and Barros, JJ., concur.