| JPMorgan Chase Bank, N.A. v Comfort Boampong |
| 2016 NY Slip Op 08849 [145 AD3d 981] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, National Association,Appellant, v Comfort Boampong, Respondent, et al.,Defendants. |
Stiene & Associates, P.C., Huntington, NY (Stephen J. Vargas and Charles W.Marino of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Wade, J.), dated October 6, 2016, which denied itsmotion for an order of reference, in effect, for leave to enter a judgment of foreclosureand sale upon the failure of the defendants Comfort Boampong, Mike Asubonteng, Jr.,and Jane Doe #1, to appear or answer the complaint, and to amend the caption, andgranted the cross motion of the defendant Comfort Boampong to compel the plaintiff toaccept her late answer.
Ordered that the order is reversed, on the law, without costs or disbursements, theplaintiff's motion for an order of reference, in effect, for leave to enter a judgment offoreclosure and sale upon the failure of the defendants Comfort Boampong, MikeAsubonteng, Jr., and Jane Doe #1, to appear or answer the complaint, and to amend thecaption is granted, and the cross motion of the defendant Comfort Boampong to compelthe plaintiff to accept her late answer is denied.
The plaintiff commenced this action to foreclose a mortgage given by the defendantsComfort Boampong and Mike Asubonteng, Jr., securing a note in the amount of$528,916. With the exception of the defendant Samuel Feldman Lumber, Co., a lienorwhich served a limited notice of appearance, the defendants failed to appear or answerthe complaint within the time allowed (see CPLR 320). The plaintiffsubsequently moved for an order of reference, in effect, for leave to enter a judgment offoreclosure and sale upon the default of Boampong, Asubonteng, and Jane Doe #1(allegedly an occupant of the subject premises, hereinafter collectively the defendants), inappearing or answering, and to amend the caption by "excising Defendants John Doe andJane Doe #1 through #7." Boampong cross-moved to compel the plaintiff to accept herlate answer. The Supreme Court denied the plaintiff's motion and granted Boampong'scross motion.
"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" (Deutsche Bank Natl. Trust Co. vKuldip, 136 AD3d 969, 969 [2016] [internal quotation marks omitted]; see HSBC Bank USA, N.A. vLafazan, 115 AD3d 647 [2014]). Here, Boampong's appearance andparticipation at two settlement conferences approximately seven months after the actionwas commenced and approximately 10 months before seeking to compel the plaintiff toaccept a late answer, did not constitute a reasonable excuse [*2]for her delay in answering (see Mannino Dev., Inc. vLinares, 117 AD3d 995, 995-996 [2014]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647 [2014];Bank of N.Y. Mellon vIzmirligil, 88 AD3d 930 [2011]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d889, 890 [2010]). Since Boampong failed to demonstrate a reasonable excuse for herdelay in answering, it is unnecessary to determine whether she demonstrated theexistence of a potentially meritorious defense (see Mannino Dev., Inc. v Linares,117 AD3d at 996; HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 648;Bank of N.Y. Mellon v Izmirligil, 88 AD3d at 932). Accordingly, the SupremeCourt erred in granting Boampong's cross motion to compel the plaintiff to accept herlate answer.
The Supreme Court also erred in denying the plaintiff's motion. The plaintiffdemonstrated its entitlement to an order of reference and leave to enter a judgment offoreclosure and sale upon the defendants' default by submitting proof of service of a copyof the summons and complaint upon all defendants, proof of the facts constituting theclaim, and proof that the defendants failed to appear or answer the complaint (seeCPLR 3215 [f]; RPAPL 1321; HSBC Bank USA, N.A. v Traore, 139 AD3d 1009, 1011[2016]). Moreover, in light of the defendants' failure to appear or answer, andBoampong's failure to demonstrate a reasonable excuse for her delay in answering, thedefendants were precluded from asserting the plaintiff's lack of standing as a defense (see US Bank N.A. v Dorestant,131 AD3d 467, 470 [2015]), and a court may not raise the issue sua sponte (see Bayview Loan Servicing, LLCv Bernard, 130 AD3d 850 [2015]). Accordingly, the plaintiff's motion for anorder of reference, in effect, for leave to enter a judgment of foreclosure and sale uponthe defendants' default in appearing or answering, and to amend the caption should havebeen granted. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.