| Wells Fargo Bank, N.A. v Stewart |
| 2017 NY Slip Op 00339 [146 AD3d 921] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A., Appellant, v EloraStewart, Respondent, et al., Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F.Batista of counsel), for appellant.
Sol Kodsi, New York, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (King, J.), dated September 8, 2015, which denied itsmotion for a judgment of foreclosure and sale and to appoint a referee to conduct a saleof the subject premises, and granted those branches of the cross motion of the defendantElora Stewart which were pursuant to CPLR 5015 (a) (1) to vacate an order of referenceof the same court dated May 21, 2014, entered upon her failure to answer the complaint,and for leave to serve a late answer.
Ordered that the order dated September 8, 2015, is reversed, on the law, with costs,the plaintiff's motion for a judgment of foreclosure and sale and to appoint a referee toconduct a sale of the subject premises is granted, and those branches of the cross motionof the defendant Elora Stewart which were pursuant to CPLR 5015 (a) (1) to vacate anorder of reference of the same court dated May 21, 2014, entered upon her failure toanswer the complaint, and for leave to serve a late answer are denied.
On April 20, 2001, the defendants Elora Stewart and Brian A. Jones obtained a loanin the amount of $248,966 from CTX Mortgage Company, Inc. In return, Stewart andJones executed a note and gave a mortgage on certain real property. Stewart and Jonesallegedly defaulted under the terms of the note by failing to make the payment due onNovember 1, 2007.
In July 2008, the plaintiff commenced this action to foreclose the mortgage againstStewart and others. Upon the defendants' failure to answer the complaint, the plaintiffobtained an order of reference dated June 30, 2010. Subsequently, in November 2013,the plaintiff moved to vacate the order of reference and for a new order of reference.During the pendency of that motion, an attorney associated with Grow Brooklyn, Inc.,filed a notice of appearance on behalf of Stewart and obtained an adjournment of theplaintiff's motion on behalf of Stewart. However, on the return date of the motion,neither the attorney nor Stewart appeared to oppose the motion, and neither had filedpapers opposing the motion. In an order dated May 21, 2014, the Supreme Court grantedthe plaintiff's motion, vacated the order of reference, and appointed a new referee tocompute the amount due.
[*2] In a reportdated August 3, 2014, the new referee set forth the amount due under the note and themortgage. The plaintiff then moved for a judgment of foreclosure and sale upon thedefendants' default in answering the complaint and to appoint a referee to conduct a saleof the subject premises. Stewart cross-moved, inter alia, pursuant to CPLR 5015 (a) (1)to vacate the new order of reference and for leave to serve a late answer. The SupremeCourt denied the plaintiff's motion and granted those branches of Stewart's cross motion.The court stated in its order that Stewart had demonstrated a reasonable excuse for herdefault and a potentially meritorious defense. The plaintiff appeals. We reverse.
"A defendant seeking to vacate a default in answering a complaint and to compel theplaintiff to accept an untimely answer must show both a reasonable excuse for the defaultand the existence of a potentially meritorious defense" (Citimortgage, Inc. v Stover,124 AD3d 575, 576 [2015]; see US Bank, N.A. v Samuel, 138 AD3d 1105, 1106[2016]; Gershman vAhmad, 131 AD3d 1104, 1105 [2015]). Here, Stewart failed to demonstrate areasonable excuse for her default in answering the complaint. The absence of areasonable excuse for the default renders it unnecessary to determine whether shedemonstrated the existence of a potentially meritorious defense (see US Bank, N.A. vSamuel, 138 AD3d at 1107; U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1109 [2016];Citimortgage, Inc. v Stover, 124 AD3d at 576). Accordingly, the Supreme Courtshould have denied those branches of Stewart's cross motion which were pursuant toCPLR 5015 (a) (1) to vacate the new order of reference and for leave to serve a lateanswer.
For the same reasons, the plaintiff's motion for a judgment of foreclosure and saleand to appoint a referee to conduct a sale of the subject premises should have beengranted. Rivera, J.P., Austin, Sgroi and Duffy, JJ., concur.