Opinion
2014-05-28
Chariklia APLADENAKI, appellant, v. GREENPOINT MORTGAGE FUNDING, INC., et al., respondents, et al., defendants.
Lawrence Spivak, Jamaica, N.Y., for appellant. Jaspan Schlesinger, LLP, Garden City, N.Y. (Christopher E. Vatter and Antonia M. Donohue of counsel), for respondents.
Lawrence Spivak, Jamaica, N.Y., for appellant.Jaspan Schlesinger, LLP, Garden City, N.Y. (Christopher E. Vatter and Antonia M. Donohue of counsel), for respondents.
, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
In an action, inter alia, to set aside a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Lebowitz, J.), entered July 14, 2010, which granted that branch of the motion of the defendants Greenpoint Mortgage Funding, Inc., and Mortgage Electronic Registration Systems, Inc. (MERS), which was to vacate an order of the same court dated February 24, 2010, striking their answer upon their failure to appear for trial and setting the matter down for an inquest, and to restore the action to the trial calendar, and denied her cross motion to vacate a so-ordered stipulation dated January 20, 2010.
ORDERED that the order entered July 14, 2010, is affirmed, with costs.
To vacate the order striking their answer upon their failure to appear for trial, the defendants Greenpoint Funding, Inc., and Mortgage Electronic Registration Systems, Inc. (MERS) (hereinafter together the respondents), were required to demonstrate both a reasonable excuse for their default and the existence of a potentially meritorious defense to the action ( see 9 Bros. Bldg. Supply Corp. v. Buonamicia, 106 A.D.3d 968, 965 N.Y.S.2d 380;Fleet Mech. Serv. Corp. v. Romaz Props., Ltd., 54 A.D.3d 995, 864 N.Y.S.2d 168;Gazetten Contr., Inc. v. HCO, Inc., 45 A.D.3d 530, 844 N.Y.S.2d 721). “The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court” ( Eastern Sav. Bank, FSB v. Charles, 103 A.D.3d 683, 684, 959 N.Y.S.2d 704;see 9 Bros. Bldg. Supply Corp. v. Buonamicia, 106 A.D.3d at 969, 965 N.Y.S.2d 380).
The Supreme Court properly granted that branch of the respondents' motion which was to vacate their default and restore the action to the trial calendar. The respondents established both a reasonable excuse for their failure to appear for trial ( see D & W Constr. v. Israel, 54 A.D.3d 889, 864 N.Y.S.2d 146;Birky v. Katsilogiannis, 37 A.D.3d 631, 632, 830 N.Y.S.2d 753;Adamo v. State of New York, 13 A.D.3d 472, 786 N.Y.S.2d 320;Mita v. Bianchi, 286 A.D.2d 376, 728 N.Y.S.2d 710), and the existence of a potentially meritorious defense to the action. Moreover, there was no showing by the plaintiff that the respondents' failure to appear was willful, or that the plaintiff was prejudiced by the default ( see Toll Bros., Inc. v. Dorsch, 91 A.D.3d 755, 756, 936 N.Y.S.2d 576).
The plaintiff's remaining contention is without merit.