| New Century Mtge. Corp. v Chimmiri |
| 2017 NY Slip Op 00312 [146 AD3d 893] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| New Century Mortgage Corporation,Respondent, v Chinni K. Chimmiri, Appellant, et al.,Defendants. |
H. Bruce Bronson, Harrison, NY, for appellant.
Gross Polowy, LLC (Reed Smith, LLP, New York, NY [Andrew B. Messite andJoseph B. Teig], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Chinni K. Chimmiri appeals froman order of the Supreme Court, Queens County (Nahman, J.), entered May 19, 2014,which denied his motion pursuant to CPLR 5015 to vacate an order of the same court(Cullen, J.) dated December 24, 2009, which granted the plaintiff's unopposed motion forsummary judgment on the complaint, to strike his answer, and for an order ofreference.
Ordered that the order entered May 19, 2014, is affirmed, with costs.
The plaintiff commenced this mortgage foreclosure action against, among others,Chinni K. Chimmiri (hereinafter the defendant), alleging that he defaulted on hisresidential mortgage payment obligations on or about November 1, 2006. The defendantfiled a pro se answer generally denying the allegations. The plaintiff moved for summaryjudgment on the complaint, to strike the defendant's answer, and for an order ofreference. The defendant failed to oppose the motion. By order dated December 24,2009, the Supreme Court granted the plaintiff's motion. Notice of entry of the order wasserved upon the defendant on March 23, 2010.
In February 2014, the defendant moved pursuant to CPLR 5015 to vacate the orderdated December 24, 2009. The plaintiff opposed the motion. By order entered May 19,2014, the Supreme Court denied the motion as untimely. The defendant appeals.
The Supreme Court providently exercised its discretion in denying the defendant'smotion pursuant to CPLR 5015 to vacate the order dated December 24, 2009." 'In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a)(1), the moving party is required to demonstrate a reasonable excuse for his or her defaultand a potentially meritorious opposition to the motion' " (Aurora Loan Servs., LLC vAhmed, 122 AD3d 557, 557 [2014], quoting Delvalle v Mercedes Benz USA,LLC, 117 AD3d 893, 893 [2014]; see Braynin v Dunleavy, 109 AD3d 571 [2013]). Suchmotion must be "made within one year after service of a copy of the judgment or orderwith written notice of its entry upon the moving party" (CPLR 5015 [a] [1]). "A motionto vacate a default is addressed to the sound discretion of the motion court" (Brayninv Dunleavy, 109 AD3d at 571). Here, where the motion to vacate the order datedDecember 24, 2009, was made nearly four years after service of the notice of entry, thecourt providently exercised its discretion in denying the motion as untimely. In any event,the record reflects that the defendant failed to demonstrate a reasonable excuse for his[*2]initial default in opposing the plaintiff's motion forsummary judgment. Inasmuch as the defendant failed to demonstrate a reasonable excusefor his default, we need not consider whether he offered a potentially meritoriousopposition to the motion (see Delvalle v Mercedes Benz USA, LLC, 117 AD3dat 894; Turko v Daffy's,Inc., 111 AD3d 615, 617 [2013]; Herrera v MTA Bus Co., 100 AD3d 962, 963 [2012]).
Furthermore, the Supreme Court properly denied the defendant's motion insofar as itwas made pursuant to CPLR 5015 (a) (3). CPLR 5015 (a) (3) permits a court to relieve aparty from an order or judgment on the ground of "fraud, misrepresentation, or othermisconduct of an adverse party." "While there is no specific time limit within which tomove under this provision, the motion must be made within a reasonable time" (Empire State Conglomerates vMahbur, 105 AD3d 898, 899 [2013]; see Bank of N.Y. v Stradford, 55 AD3d 765 [2008]; Aames Capital Corp. vDavidsohn, 24 AD3d 474, 475 [2005]). Here, the court providently exercised itsdiscretion in denying the motion, as it was not made within a reasonable time (seeEmpire State Conglomerates v Mahbur, 105 AD3d at 899). In any event, thecircumstances cited by the defendant failed to establish that the plaintiff procured theorder by fraud, misrepresentation, or other misconduct (see id. at 899; Tribeca Lending Corp. vCrawford, 79 AD3d 1018, 1020 [2010]; Bank of N.Y. v Stradford, 55AD3d at 765-766; Aames Capital Corp. v Davidsohn, 24 AD3d at 475).
The defendant's remaining contentions are without merit. Chambers, J.P., Cohen,Maltese and Barros, JJ., concur.