Opinion
2021–01772 Index No. 606566/18
08-10-2022
251 GOTHAM, LLC, respondent, v. BANK OF NEW YORK MELLON, etc., defendant, Deutsche Bank National Trust Company, etc., appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Megan K. McNamara, Hillary Prada, and Rajdai Singh of counsel), for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Megan K. McNamara, Hillary Prada, and Rajdai Singh of counsel), for appellant.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action pursuant to RPAPL 1501(4) to cancel and discharge of record two mortgages, the defendant Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered November 23, 2020. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate so much of a judgment of the same court entered January 28, 2019, as, upon its failure to appear or answer the complaint, was in favor of the plaintiff and against it, and thereupon, to dismiss the complaint insofar as asserted against it, or, in the alternative, for leave to serve a late answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In May 2018, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record two mortgages. The defendant Deutsche Bank National Trust Company (hereinafter Deutsche Bank) failed to appear or answer the complaint. On January 28, 2019, a judgment was entered in favor of the plaintiff and against the defendants. Subsequently, Deutsche Bank moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of the judgment as, upon its failure to appear or answer the complaint, was in favor of the plaintiff and against it and thereupon, to dismiss the complaint insofar as asserted against it, or, in the alternative, for leave to serve a late answer. In an order entered November 23, 2020, the Supreme Court, among other things, denied those branches of Deutsche Bank's motion. Deutsche Bank appeals.
"A defendant seeking to vacate a default in appearing in the action or answering the complaint must show both a reasonable excuse for the default and a potentially meritorious defense" ( Wells Fargo Bank, N.A. v. Hyun Jung Kim, 189 A.D.3d 1673, 1674, 135 N.Y.S.3d 267 ; see CPLR 5015[a][1] ; Hairston v. Marcus Garvey Residential Rehab Pavilion, Inc., 163 A.D.3d 530, 531, 80 N.Y.S.3d 407 ). Here, Deutsche Bank failed to offer a reasonable excuse for its failure to appear or answer the complaint (see Board of Mgrs. of Harborview Condominium v. Goodman, 189 A.D.3d 1529, 1530–1531, 139 N.Y.S.3d 374 ; Chowdhury v. Weldon, 185 A.D.3d 649, 650, 124 N.Y.S.3d 863 ; Deep v. City of New York, 183 A.D.3d 586, 587, 123 N.Y.S.3d 174 ). Moreover, Deutsche Bank did not provide a reasonable excuse for its delay of almost one year in moving to vacate the judgment (see Nanas v. Govas, 176 A.D.3d 956, 957, 108 N.Y.S.3d 353 ; Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; Prudence v. White, 144 A.D.3d 655, 656, 39 N.Y.S.3d 837 ). Since Deutsche Bank failed to demonstrate a reasonable excuse for its default, it is unnecessary to determine whether it demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Hyun Jung Kim, 189 A.D.3d at 1674, 135 N.Y.S.3d 267 ; Nanas v. Govas, 176 A.D.3d at 957, 108 N.Y.S.3d 353 ).
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of Deutsche Bank's motion which was pursuant to CPLR 5015(a)(1) to vacate so much of the judgment as was in favor of the plaintiff and against it. Deutsche Bank's remaining contentions either are not properly before this Court or need not be reached in light of our determination.
CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.