| Bank of Am., N.A. v Agarwal |
| 2017 NY Slip Op 03467 [150 AD3d 651] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., Respondent, v Kanwal N.Agarwal et al., Defendants. |
Harvey Sorid, Uniondale, NY, for appellants.
Davidson Fink LLP, Rochester, NY (Larry T. Powell of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Kanwal N. Agarwal and Shilpa Agarwalappeal from an order of the Supreme Court, Nassau County (Adams, J.), entered November 17,2014, which granted the plaintiff's motion to confirm a referee's report and for a judgment offoreclosure and sale, and denied their cross motion, in effect, to vacate their default in answeringthe complaint and to dismiss the complaint insofar as asserted against them, inter alia, basedupon the plaintiff's failure to comply with RPAPL 1304, or for leave to serve a late answer.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage against the defendants KanwalN. Agarwal and Shilpa Agarwal (hereinafter together the defendants), among others. Thedefendants did not answer the complaint. After a foreclosure settlement conference, the SupremeCourt granted the plaintiff's unopposed motion for a default judgment and an order of reference.The plaintiff subsequently moved to confirm the referee's report and for a judgment offoreclosure and sale. The defendants opposed the motion and cross-moved, in effect, to vacatetheir default in answering the complaint and to dismiss the complaint insofar as asserted againstthem, inter alia, based upon the plaintiff's failure to comply with RPAPL 1304, or for leave toserve a late answer. In an order entered November 17, 2014, the Supreme Court granted theplaintiff's motion and denied the defendants' cross motion. The defendants appeal.
"An applicant for a default judgment against a defendant must submit proof of service of thesummons and complaint, proof of the facts constituting the claim, and proof of the defaultingdefendant's failure to answer or appear" (HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [2017][internal quotation marks omitted]; see CPLR 3215 [f]; Citimortgage, Inc. v Chow Ming Tung,126 AD3d 841, 843 [2015]; U.S.Bank, N.A. v Razon, 115 AD3d 739, 740 [2014]). Here, the plaintiff satisfied theserequirements (see U.S. Bank, N.A. v Razon, 115 AD3d at 740).
A defendant seeking to vacate a default in answering a complaint and to compel the plaintiffto accept an untimely answer must show both a reasonable excuse for the default and theexistence of a potentially meritorious defense (see CPLR 2004, 3012 [d]; Chase Home Fin., LLC v Minott, 115AD3d 634, 634 [2014]; CommunityPreserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785 [2011]; Taddeo-Amendola v 970 Assets, LLC,72 AD3d 677 [2010]). In opposition to the [*2]plaintiff'smotion, and in support of their cross motion, the defendants failed to offer any excuse for theirdefault. Accordingly, it is unnecessary to consider whether they sufficiently demonstrated apotentially meritorious defense (seeHSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648 [2014]; U.S. Bank N.A. v Stewart, 97 AD3d740, 741 [2012]; see also HSBCBank USA, N.A. v Roldan, 80 AD3d 566, 567 [2011]), including the plaintiff'spurported failure to comply with the notice requirements of RPAPL 1304 and paragraph 22 ofthe mortgage (see HSBC Bank USA, N.A. v Clayton, 146 AD3d at 942).
Accordingly, the Supreme Court properly granted the plaintiff's motion and denied thedefendants' cross motion.
The defendants' remaining contention is improperly raised for the first time on appeal.Dillon, J.P., Roman, Cohen and Miller, JJ., concur.