Opinion
12682N Index No. 380865/11 Case No. 2019-2759
12-17-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff–Appellant, v. Bonnie GOULD et al., Defendants, Susanne Dawn Alexander, Defendant–Respondent.
RAS Boriskin, LLC, Westbury (Joseph F. Battista of counsel), for appellant. Bronx Legal Services, Bronx (Alexis Lorenzo of counsel), for respondent.
RAS Boriskin, LLC, Westbury (Joseph F. Battista of counsel), for appellant.
Bronx Legal Services, Bronx (Alexis Lorenzo of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Kern, Oing, Moulton, JJ.
Order, Supreme Court, Bronx County (Doris Gonzalez, J.), entered on or about September 18, 2018, which denied plaintiff's motion to vacate a default, unanimously reversed, on the law and the facts, without costs, the motion granted, and the action restored to the court calendar.
Plaintiff showed both a reasonable excuse for the alleged default and a potentially meritorious claim ( CPLR 5015 ; Kellert v. Mail Boxes, Etc. USA, 248 A.D.2d 127, 669 N.Y.S.2d 557 [1st Dept. 1998] ). Here, the alleged default was plaintiff's failure to appear for a scheduled conference (see 22 NYCRR 202.27 ). However, plaintiff's counsel did appear, but mistakenly made the appearance as regarding only a prior, pending action relating to the same property, filed in 2007, and not the instant action. That type of law office failure provides a reasonable excuse (see Las Palmeras De Ossining Rest., Inc. v. Midway Ctr. Corp. , 107 A.D.3d 853, 968 N.Y.S.2d 118 [2d Dept. 2013] ; cf. Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ). The details of the law office error were sufficiently set forth in counsel's affirmation.
Plaintiff also made out a potentially meritorious claim of default on the mortgage. Defendant is incorrect that because of the prior pending foreclosure action RPAPL 1301 bars this action. That statute bars a mortgagee who elects foreclosure from commencing an action to collect the debt (see Rainbow Venture Assoc. v. Parc Vendome Assoc. , 221 A.D.2d 164, 633 N.Y.S.2d 478 [1st Dept. 1995] ), a situation not present here.