| HSBC Bank USA, N.A. v Powell |
| 2017 NY Slip Op 02408 [148 AD3d 1123] |
| March 29, 2017 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., as Trustee on Behalf of Ace SecuritiesCorp. Home Equity Trust and for the Registered Holders of Ace Securities Corp. Home EquityLoan Trust, Series 2007-HE4, Asset Backed Pass Through Certificates,Respondent, v Coleen Powell et al., Defendants, and Angella J. Pusey,Appellant. |
Angella J. Pusey, Saint Albans, NY, appellant pro se.
Greenberg Traurig, LLP, New York, NY (Dale R. Goldstein and Patrick G. Broderick ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Angella J. Pusey appeals from an order ofthe Supreme Court, Queens County (Sampson, J.), entered July 31, 2015, which denied hermotion pursuant to CPLR 5015 (a) (1) to vacate an order of reference of the same court enteredupon her failure to appear or answer the complaint, and to compel the plaintiff to accept her lateanswer.
Ordered that the order is affirmed, with costs.
On or about February 1, 2012, the plaintiff commenced this action to foreclose a mortgagegiven by the defendants Coleen Powell and Angella J. Pusey (hereinafter the appellant), securinga note in the amount of $560,500 and encumbering real property located in Saint Albans, Queens(hereinafter the property). According to an affidavit of service, the appellant was served, interalia, with the summons and complaint on February 8, 2012, by delivery of the documents to aperson of suitable age and discretion at the property, followed by a mailing of the documents tothe appellant at the property. The appellant failed to appear, answer, or otherwise move withrespect to the complaint, and the plaintiff thereafter moved, inter alia, for an order of reference,which motion was subsequently granted by the Supreme Court without opposition. On March 6,2014, the appellant mailed an answer to the plaintiff's attorneys, which they rejected as untimely.In February 2015, the appellant moved to vacate the order of reference and to compel the plaintiffto accept her late answer, arguing, inter alia, that she was never served with the summons andcomplaint. The Supreme Court denied the 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 delay anddemonstrate a potentially meritorious defense to the action' " (JPMorgan Chase Bank, N.A. v ComfortBoampong, 145 AD3d 981, 982 [2016], quoting Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 969[2016]; see CPLR 3012 [d]; TCIF REO GCM, LLC v Walker, 139 AD3d 704, 705 [2016]; Bank of N.Y. Mellon v Colucci, 138AD3d 1047 [2016]; HSBC BankUSA, N.A. v Lafazan, 115 AD3d 647, 648 [2014]). " 'The determination ofwhat constitutes a reasonable excuse lies within the sound discretion of the SupremeCourt' " (HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 648, quoting Maspeth Fed. Sav. & Loan Assn. vMcGown, 77 AD3d 889, 890 [2010]). Here, the appellant's bare denial of service of thesummons and complaint did not constitute a reasonable excuse for her delay in answering, so asto [*2]entitle her to serve a late answer (see Goldfarb v Zhukov, 145 AD3d757 [2016]; Nationstar Mtge., LLCv McLean, 140 AD3d 1131, 1132 [2016]; Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC, 140 AD3d1054, 1055 [2016]; Aurora LoanServs., LLC v Lucero, 131 AD3d 496, 497 [2015]). For the same reasons, the appellantwas not entitled to vacatur of the order of reference (see CPLR 5015 [a] [1];Nationstar Mtge., LLC v McLean, 140 AD3d at 1132).
Since the appellant failed to demonstrate a reasonable excuse, it is unnecessary to considerwhether she demonstrated the existence of a potentially meritorious defense (see JPMorgan Chase Bank, N.A. v ComfortBoampong, 145 AD3d 981 [2016]; Federal Natl. Mtge. Assn. v Zapata, 143 AD3d 857, 858 [2016]; Bank of N.Y. Mellon v Colucci, 138AD3d 1047 [2016]).
The appellant's remaining contentions either are improperly raised for the first time on appealor have been rendered academic by our determination.
Accordingly, the Supreme Court properly denied the appellant's motion to vacate the order ofreference and to compel the plaintiff to accept her late answer. Dillon, J.P., Sgroi, Hinds-Radixand Maltese, JJ., concur.