| Bank of N.Y. Mellon v Genova |
| 2018 NY Slip Op 02179 [159 AD3d 1009] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Formerly Known as The Bank ofNew York, as Successor to JP Morgan Chase Bank, National Association, as Successor to BankOne, National Association, as Trustee for Credit Suisse First Boston, Mortgage Pass-ThroughCertificate, Series 2003-29, Respondent, v Joseph Genova, Also Known as JosephGenova, Jr., Appellant, et al., Defendants. |
Luthmann Law Firm, PLLC, Staten Island, NY (Richard A. Luthmann of counsel), forappellant.
Reed Smith LLP, New York, NY (Andrew B. Messite and Kerren B. Zinner of counsel), forrespondent.
Appeal from an order and judgment of foreclosure and sale (one paper) of the SupremeCourt, Richmond County (Charles M. Troia, J.), dated February 9, 2016. The order andjudgment, insofar as appealed from, granted the plaintiff's motion, in effect, for summaryjudgment on the complaint and to confirm a referee's report, and directed the sale of the subjectproperty, and, in effect, denied those branches of the cross motion of the defendant JosephGenova, also known as Joseph Genova, Jr., which were to vacate his default in appearing oranswering and for leave to interpose an answer.
Ordered that the order and judgment of foreclosure and sale is affirmed insofar as appealedfrom, with costs.
In June 2012, the plaintiff commenced this action against, among others, Joseph Genova,also known as Joseph Genova, Jr. (hereinafter the defendant), to foreclose a mortgage. Thedefendant failed to appear or answer the complaint. In January 2014, the plaintiff moved for anorder of reference. The defendant, pro se, cross-moved to compel the plaintiff to accept a lateanswer. By order dated June 26, 2014, the Supreme Court granted the plaintiff's motion, deniedthe defendant's cross motion, and referred the matter to a referee to compute the amount due onthe mortgage loan. In January 2015, the plaintiff moved, in effect, for summary judgment on thecomplaint and to confirm the referee's report. The defendant, now represented by counsel,cross-moved, inter alia, to vacate his default in appearing or answering and for leave to interposean answer. In an order and judgment of foreclosure and sale dated February 9, 2016, the courtgranted the plaintiff's motion and directed the sale of the subject property, and, in effect, deniedthe defendant's cross motion. The defendant appeals from so much of the order and judgment asgranted the plaintiff's motion and directed the sale of the subject property, and, in effect, deniedthose branches of his cross motion which were to vacate his default in appearing or answeringand for leave to interpose an answer. We affirm insofar as appealed from.
In support of its motion, in effect, for summary judgment and to confirm the referee's report,the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by [*2]submitting the mortgage, the note, and an affidavit of its loanservicer's assistant vice president attesting to the borrower's default under the terms of the loan(see Bank of N.Y. Mellon v Burke,155 AD3d 932 [2017]; SilvergateBank v Calkula Props., Inc., 150 AD3d 1295, 1296 [2017]). The plaintiff alsodemonstrated, prima facie, that it was the holder of the note at the time the action wascommenced, as evidenced by its attachment of the note, endorsed in blank, to the summons andcomplaint at the time the action was commenced (see Bank of N.Y. Mellon v Burke, 155AD3d at 932). In opposition, the defendant failed to raise a triable issue of fact.
Furthermore, "[a] defendant seeking to vacate a default in appearing or answering mustprovide a reasonable excuse for the default and demonstrate a potentially meritorious defense tothe action" (Deutsche Bank Natl. TrustCo. v Gutierrez, 102 AD3d 825, 825 [2013]; see Wells Fargo Bank, N.A. v Russell, 101 AD3d 860, 861 [2012];Arias v First Presbyt. Church inJamaica, 100 AD3d 940, 941 [2012]; Deutsche Bank Natl. Trust Co. v Rudman, 80 AD3d 651, 652[2011]; see also HSBC Bank USA, N.A.v Powell, 148 AD3d 1123, 1124 [2017]; Federal Natl. Mtge. Assn. v Zapata, 143 AD3d 857, 858 [2016]; Mannino Dev., Inc. v Linares, 117AD3d 995, 995 [2014]).
Here, the defendant failed to provide a reasonable excuse for his default. His bare andunsubstantiated denial of service of the summons and complaint did not constitute a reasonableexcuse for his default in answering, since it lacked the factual specificity and detail required torebut the prima facie evidence of proper service set forth in the affidavit of the plaintiff's processserver (see HSBC Bank USA, N.A. v Powell, 148 AD3d at 1124; TCIF REO GCM, LLC v Walker, 139AD3d 704, 705 [2016]; AuroraLoan Servs., LLC v Lucero, 131 AD3d 496, 497 [2015]). Moreover, the defendant failedto provide a reasonable excuse for his lengthy delay in seeking to vacate his default (seeDeutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d at 825; Arias v First Presbyt.Church in Jamaica, 100 AD3d at 941). Contrary to the defendant's contention, the fact that hewas not represented by counsel until he moved to vacate his default did not constitute areasonable excuse (see Wells FargoBank, NA v Besemer, 131 AD3d 1047, 1049 [2015]; Chase Home Fin., LLC v Minott, 115AD3d 634, 634 [2014]; U.S. BankN.A. v Slavinski, 78 AD3d 1167, 1167 [2010]; Dorrer v Berry, 37 AD3d 519, 520 [2007]).
Since the defendant failed to demonstrate a reasonable excuse for his default, it isunnecessary to consider whether he demonstrated the existence of a potentially meritoriousdefense (see HSBC Bank USA, N.A. v Powell, 148 AD3d at 1124; JPMorgan Chase Bank, N.A. v ComfortBoampong, 145 AD3d 981, 982 [2016]; Federal Natl. Mtge. Assn. v Zapata, 143AD3d at 858; Bank of N.Y. Mellon vColucci, 138 AD3d 1047, 1048 [2016]).
Accordingly, the Supreme Court properly, in effect, denied those branches of the defendant'scross motion which were to vacate his default in appearing or answering and for leave tointerpose an answer and granted the plaintiff's motion, in effect, for summary judgment on thecomplaint and to confirm the referee's report. Rivera, J.P., Cohen, Maltese and Iannacci, JJ.,concur.