Opinion
2011-10-25
Bank of New York MELLON, etc., respondent,v.Arif IZMIRLIGIL, appellant, et al., defendants.
Ronald D. Weiss, Melville, N.Y., for appellant.Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby of counsel), for respondent.
Ronald D. Weiss, Melville, N.Y., for appellant.Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Arif Izmirligil appeals from (1) an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 16, 2010, which denied his motion, in effect, inter alia, to vacate his default in appearing or answering, and (2) an order of the same court dated September 22, 2010, which denied his motion for leave to renew and reargue that motion.
ORDERED that the appeal from so much of the order dated September 22, 2010, as denied that branch of the motion which was for leave to reargue is denied, as no appeal lies from the denial of a motion for leave to reargue; and it is further,
ORDERED that the order dated July 16, 2010, is affirmed; and it is further,
ORDERED that the order dated September 22, 2010, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
“A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer” ( Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789, 921 N.Y.S.2d 643; see Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403; Equicredit Corp. of Am. v. Campbell, 73 A.D.3d 1119, 1120, 900 N.Y.S.2d 907; Nasca v. Town of Brookhaven, 4 A.D.3d 462, 462, 771 N.Y.S.2d 686; Khanna v. Premium Food & Sports Enter., 279 A.D.2d 508, 509, 720 N.Y.S.2d 349). “ ‘The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court’ ” ( Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 789, 921 N.Y.S.2d 643, quoting Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890, 909 N.Y.S.2d 403; see
Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357; Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557).
Here, the defendant Arif Izmirligil (hereinafter the defendant) failed to establish a reasonable excuse for his default. The Supreme Court providently exercised its discretion in rejecting the defendant's proffered excuse that he was engaged in settlement negotiations ( see Kouzios v. Dery, 57 A.D.3d 949, 950, 871 N.Y.S.2d 303; Antoine v. Bee, 26 A.D.3d at 306, 812 N.Y.S.2d 557; Majestic Clothing Inc. v. East Coast Stor., LLC, 18 A.D.3d 516, 518, 795 N.Y.S.2d 289). Since the defendant failed to demonstrate a reasonable excuse for his default, it is unnecessary to determine whether he demonstrated the existence of a potentially meritorious defense ( see Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643; HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 905, 866 N.Y.S.2d 357).
“ ‘A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion’ ” ( Wells Fargo Bank, N.A. v. Caro, 82 A.D.3d 880, 882, 920 N.Y.S.2d 90, quoting Marrero v. Crystal Nails, 77 A.D.3d 798, 799, 909 N.Y.S.2d 136; see Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 985, 986, 912 N.Y.S.2d 882; CPLR 2221[e] ). Here, the Supreme Court properly denied that branch of the defendant's motion which was for leave to renew, as the allegedly “new facts” offered would not have changed the prior determination (CPLR 2221[e][2] ).
The defendant's remaining contention is not properly before this Court.