Opinion
15941 Index No. 156870/18 Case No. 2021-02166
05-12-2022
3331 102 ST. LLC, Plaintiff–Respondent, v. NEWPORT BEACH HOLDINGS LLC, Defendant–Appellant. Wilmington PT Corp., Nonparty Appellant.
Hasbani & Light, P.C., New York (Danielle Light of counsel), for Newport Beach Holdings LLC, appellant. Massoud & Pashkoff, LLP, New York (Ahmed A. Massoud of counsel), for respondent.
Hasbani & Light, P.C., New York (Danielle Light of counsel), for Newport Beach Holdings LLC, appellant.
Massoud & Pashkoff, LLP, New York (Ahmed A. Massoud of counsel), for respondent.
Gische, J.P., Scarpulla, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about February 26, 2021, which denied nonparty appellant's (Wilmington) motion to vacate the default judgment and be substituted as defendant, unanimously affirmed, without costs.
Supreme Court providently denied the motion. "A defendant moving pursuant to CPLR 5015(a)(3) to vacate a default based on intrinsic fraud, i.e., on the basis that the plaintiff's allegations in the complaint are false, must establish both a reasonable excuse for the default and a potentially meritorious defense to the action" ( JPMorgan Chase Bank, N.A. v. Multani , 196 A.D.3d 549, 550, 147 N.Y.S.3d 452 [2d Dept. 2021] ; see also Chevalier v. 368 E. 148th St. Assoc., LLC , 80 A.D.3d 411, 413, 914 N.Y.S.2d 130 [1st Dept. 2011] ). The record demonstrates that defendant, a Nevada LLC, was validly served on July 25, 2018, through its registered agent, whereas the assignment transferring defendant's interest in the mortgage in question to Wilmington occurred on September 18, 2018. However, Wilmington failed to proffer any excuse for defendant's failure to answer.
Given Wilmington's failure "to provide an acceptable excuse for the default, it is unnecessary for this Court to address whether [it] demonstrated" a potentially meritorious defense ( Luciano v. Felix, 185 A.D.3d 469, 470, 127 N.Y.S.3d 465 [1st Dept. 2020] ; accord Fernandez v. Santos, 161 A.D.3d 473, 474, 76 N.Y.S.3d 147 [1st Dept. 2018] ).
Finally, Wilmington does not "provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would warrant vacatur in the interest of substantial justice" ( Wells Fargo Bank, N.A. v. Abakporo, 186 A.D.3d 652, 654, 129 N.Y.S.3d 430 [2d Dept. 2020] ; see Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [1984] ).