Opinion
2017–00448 Index No. 11037/10
05-13-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Romanie ABRAHIM, Appellant, et al., Defendants.
Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant. McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Charles Jeanfreau of counsel), for respondent.
Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Charles Jeanfreau of counsel), for respondent.
CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN JEFFREY A. COHEN LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Romanie Abrahim appeals from an order of the Supreme Court, Queens County (Lee A. Mayersohn, J.), entered November 14, 2016. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) or, in the alternative, pursuant to CPLR 5015(a)(1) and 3012(d) to vacate her default and for leave to interpose a late answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This mortgage foreclosure action was commenced in 2010 against the defendant Romanie Abrahim (hereinafter the defendant), who is the mortgagor, and others. According to the affidavit of service, the defendant was personally served at her home on May 13, 2010. Although the defendant failed to timely interpose an answer, she participated in foreclosure settlement conferences. In October 2012, the defendant appeared and unsuccessfully moved to restore the action to the foreclosure settlement conference part. In June 2014, the defendant moved, inter alia, pursuant to CPLR 5015(a)(4) or, in the alternative, pursuant to CPLR 5015(a)(1) and 3012(d) to vacate her default and for leave to interpose a late answer. The Supreme Court denied those branches of the defendant's motion, and the defendant appeals.
Contrary to the defendant's contention, her bare and unsubstantiated denial of service was insufficient to overcome the presumption raised by the affidavit of service (see HSBC Bank USA v. Archer, 173 A.D.3d 984, 985, 104 N.Y.S.3d 150 ; PNC Bank, N.A. v. Bannister, 161 A.D.3d 1114, 1115–1116, 77 N.Y.S.3d 452 ). Moreover, the defendant waived the issue of lack of personal jurisdiction by appearing in the action in 2012 and seeking affirmative relief from the court without raising the defense of lack of personal jurisdiction (see HSBC Bank USA, N.A. v. Taub, 170 A.D.3d 1128, 1129–1130, 97 N.Y.S.3d 60 ; Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481 ; Finn v Church for the Art of Living, Inc., 90 A.D.3d 826, 827, 935 N.Y.S.2d 93 ).
A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a)(1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278 ; Wells Fargo Bank, N.A. v. Pelosi, 159 A.D.3d 852, 853, 69 N.Y.S.3d 809 ). Here, the defendant failed to offer any reasonable excuse that would warrant vacatur of her default (see Wells Fargo Bank, N.A. v. Pelosi, 159 A.D.3d at 853, 69 N.Y.S.3d 809 ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ; U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1167–1168, 912 N.Y.S.2d 285 ). Under these circumstances, it is unnecessary for us to consider whether the defendant demonstrated the existence of a potentially meritorious defense (see HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32 ; U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411 ).
CHAMBERS, J.P., ROMAN, COHEN and CHRISTOPHER, JJ., concur.