Opinion
62428/14
03-07-2016
Deutsche Bank National Trust Company, as Trustee on behalf of the registered holders of GSAMP Trust 2004-AR1, Mortgage Pass-Through Certificates, Series 2004-AR1, Plaintiff, v. Gary Deserio a/k/a GARY A. DESERIO, PEOPLE OF THE STATE OF NEW YORK, CAPITAL ONE BANK USA NA, TAMMY DESERIO, CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, Defendants.
FRENKEL, LAMBERT, WEISS Attys. For Plaintiff 53 Gibson St. Bay Shore, NY 11706 RUBIN & LICATESI, PC Attys. For Def. Gary Deserio 591 Stewart Ave. Garden City, NY 11530
FRENKEL, LAMBERT, WEISS Attys. For Plaintiff 53 Gibson St. Bay Shore, NY 11706 RUBIN & LICATESI, PC Attys. For Def. Gary Deserio 591 Stewart Ave. Garden City, NY 11530 Thomas F. Whelan, J.
Upon the following papers numbered 1 to 17 read on this motion by the plaintiff for an order confirming the report of the referee to compute and issuance of a judgment of foreclosure and sale and cross motion by defendant Deserio for dismissal of the plaintiff's complaint; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers 5-8; Answering papers 9-11; 12-14; Reply papers 15-17; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#002) by the plaintiff for an order confirming the report of the referee of sale and for the issuance of a judgment of foreclosure and sale is considered under RPAPL Article 13 and is granted; and it is further
ORDERED that the cross-motion (#003) by defendant, Gary Deserio, to dismiss the complaint or for leave to serve a late answer is considered under CPLR 3211(a)(8), 5015(a)(4) and 3012(d) and is denied.
The plaintiff commenced this action to foreclose the lien of a January 9, 2004 mortgage given to a predecessor-in-interest of the plaintiff by defendant Deserio to secure a mortgage note likewise given on that date in the principal amount of $194,700.00. The loan went into default in February of 2011 and the plaintiff commenced this action in April of 2014 to enforce its contractual remedy of foreclosure and sale. In response to the plaintiff's service of the summons and complaint upon him in May of 2014, defendant Deserio failed to appear herein by answer. The plaintiff then moved for an order of reference on default (#001), which was granted by order of this court dated June 25, 2015. Therein, the default in answering of defendant Deserio and all others served with process was fixed and determined by the court.
By the instant motion (#002) the plaintiff moves for an order confirming the report of the referee to compute and for the issuance of a judgment of foreclosure and sale. Defendant Deserio appears in opposition to such motion and separately moves by way of a cross motion (#003) for an order dismissing the complaint on jurisdictional and other grounds. Alternatively, defendant Deserio seeks an order granting him leave to appear herein by service of a late answer. The plaintiff opposes the cross motion in papers that also serve as a reply to the opposing papers of defendant Deserio.
First considered is the cross motion (#003) by defendant Deserio, as a determination thereof may render the plaintiff's motion academic. Where, as here, a claim for vacatur rests upon a jurisdictional defense, appellate case authorities have instructed trial courts to consider the efficacy of such defense prior to determining whether discretionary grounds for a vacatur of the default exist under CPLR 5015(a)(1) or CPLR 3012(d) (see Community West Bank , N.A. v Stephen , 127 AD3d 1008, 9 NYS3d 275 [2d Dept 2015]; E*Trade Bank v Vasquez , 126 AD3d 933, 934, 7 NYS3d 285, 286 [2d Dept 2015]; HSBC Bank USA Natl . Ass'n v Miller , 121 AD3d 1044, 995 NYS2d 198 [2d Dept 2014]; Youngstown Tube Co . v Russo , 120 AD3d 1409, 993 NYS2d 146 [2d Dept 2014]; Canelas v Flores , 112 AD3d 871, 977 NYS2d 362 [2d Dept 2013]).
The successful invocation of a jurisdictional defense is a complete defense to the complaint and where it is established the dismissal of an action against the moving defendant is warranted without any demonstration of his or her possession of a meritorious defense or other elemental showing (see Prudence v Wright , 94 AD3d 1073, 943 NYS2d 185 [2d Dept 2012]; see also Emigrant Mortg . Co., Inc. v Westervelt , 105 AD3d 896, 964 NYS2d 543 [2d Dept 2013]; Deutsche Bank Natl . Trust Co. v Pestano , 71 AD3d 1074, 899 NYS2d 269 [2d Dept 2010]). Alternatively, a defendant who successfully establishes the defense of improper service may elect to waive the jurisdictional aspect of such defense and appear in the action so as to defend against the claims interposed in an effort to succeed on the merits and avoid a section commenced action by the plaintiff (see Equicredit Corp . of America v Campbell , 73 AD3d 1119, 900 NYS2d 907 [2d Dept 2010]; Ramirez v Romualdo , 25 AD3d 680, 808 NYS2d 733 [2d Dept 2006]; see also ACT Prop ., LLC v Garcia , 102 AD3d 712, 957 NYS2d 884 [2d Dept 2013]; Dupps v Betancourt , 99 AD3d 855, 952 NYS2d 585 [2d Dept 2012]). To do so, however, such defendant must satisfy the two prong test applicable to the discretionary vacatur permitted under CPLR 5015(a)(1) and or CPLR 3012(d), both of which require a showing of a reasonable excuse for the default such as the improper service and the movant's possession of a meritorious defense to the action (see Eugene Di Lorenzo , Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141, 501 NYS2d 8 [1986]; [2d Dept 2005]; Deutsche Bank Nat . Assoc. v Kudlip , ___ AD3d___, 2016 WL 717958 [2d Dept 2016]; U.S. Bank Nat. Assoc. v Sachdev , 128 AD3d 807, 9 NYS3d 337 [2d Dept 2015]; ACT Prop ., LLC v Garcia , 102 AD3d 712, supra; Equicredit Corp. of America v Campbell , 73 AD3d 1119, supra).
A "process server's affidavit of service constitutes prima facie evidence of proper service" ( Scarano v Scarano , 63 AD3d 716, 716, 880 NYS2d 682 [2d Dept 2009]; see NYCTL 2009—A Trust v Tsafatinos , 101 AD3d 1092, 1093, 956 NYS2d 571 [2d Dept 2012]). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" ( Countrywide Home Loans Serv., LP v Albert , 78 AD3d at 984—985, 912 NYS2d 96 [2d Dept 2010; internal quotation marks and citation omitted]; see Mortgage Elec . Registration Sys., Inc. v Losco , 125 AD3d 733, 2015 WL 542795 [2d Dept 2015]; JPMorgan Chase v Todd , 125 AD3d 953, 2015 WL 775077 [2d Dept 2015]; Emigrant Mtge . Co., Inc. v Westervelt , 105 AD3d 896, 897, 964 NYS2d 543 [2d Dept 2013]; Countrywide Home Loans Serv ., LP v Albert , 78 AD3d 983, 984—985, supra). Bare conclusory and unsubstantiated denials of receipt of process are thus insufficient to rebut the presumption of proper service created by the affidavit of the plaintiff's process server and to require a traverse hearing (see Beneficial Homeowner Serv . Corp. v Girault , 60 AD3d 984, 875 NYS2d 815 [2d Dept 2009]; Hamlet of Olde Oyster Bay Homeowners' Assoc . v Ellner , 57 AD3d 732, 869 NYS2d 591 [2d Dept 2008]; Mortgage Elec . Sys. v Shotter , 50 AD3d 983, 857 NYS2d 592 [2d Dept 2008]; 425 East 26th St . Owners' Corp. v Beaton , 50 AD3d 845, 858 NYS2d 188 [2d Dept 2008]; Jefferson v Netusic , 44 AD3d 621, 843 NYS2d 158 [2d Dept 2007]).
Here, the affidavits of service of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see Onewest Bank v Johnson , 127 AD3d 830, 4 NYS3d 889[2d Dept 2015]; ACT Prop., LLC v Garcia , 102 AD3d 712, supra; Bank of NY v Espejo , 92 AD3d 707, 708 [2d Dept 2012]; U .S. Natl. Bank Assn. v Melton , 90 AD3d 742, 743, 934 NYS2d 352 [2d Dept 2011]). It was thus incumbent upon defendant Deserio to rebut this prima facie showing of due service by specific and substantiated allegations regarding a lack of such service (see Bank of NY v Espejo , 92 AD3d 707, supra).
A review of the cross moving papers reveals that the same were insufficient to rebut the presumption of due service arising from the process server's affidavit of service upon defendant Deserio pursuant to CPLR 308(2). Such service was effected on April 26, 2014 at 1662 Lincoln Avenue, Bohemia, New York, which was the dwelling place and/or actual place of abode of defendant Deserio, as confirmed by Kimberly Lamantia, the person of suitable age and discretion to whom the summons, complaint and other initiatory papers were delivered. This service was effected after attempts to serve defendant Deserio at the mortgaged premises and at the address of his mother at 18 Amityville Street, Islip Terrace, New York were abandoned due to denials by the occupants at such premises that defendant Deserio resided there.
The allegations set forth in the supporting affidavit of defendant Deserio that he took up residence at the 18 Amityville Street residence after leaving the mortgaged premises when he separated from his wife in 2012 are conclusory and unsubstantiated and thus insufficient to warrant a hearing on the issue of service (see Chichester v Alal—Amin Grocery & Halal Meat , 100 AD3d 820, 954 NYS2d 577 [2d Dept 2012]; cf., Dime Sav . Bank of Williamsburg v 146 Ross Realty , 106 AD3d 863, 966 NYS2d 443 [2d Dept 2013] ). The defendant's production of a driver's license as an attachment to his moving papers that was issued subsequent to the date on which the plaintiff effected service indicating his residence address as the address of his mother at the 18 Amityville Street residence in Islip Terrace, New York does not substantiate his claim that the address in Bohemia, at which service was effected, was not his dwelling place and/or usual place of abode at the time of service. The court declines to consider the defendant's reply papers submission of a motorcycle learner's permit issued in May of 2013 since that permit constitutes new matter to which the plaintiff has not had the opportunity to respond (see Sahni v Kitridge Realty Co ., Inc ., 114 AD3d 837, 980 NYS2d 787 [2d Dept 2014]; Mora v Cammeby's Realty Corp ., 106 AD3d 704, 966 NYS2d 99 [2d Dept 2013]). Those portions of the defendant's cross motion wherein he seeks the dismissal of this action due to a purported lack of jurisdiction over his person is thus denied.
Also denied are those portions of the cross motion by defendant Deserio for a direct and immediate dismissal of this action on the grounds that the plaintiff lacks standing to prosecute its claims for foreclosure and sale and because the plaintiff purportedly failed to comply with the ninety day pre-action notice provisions of RPAPL § 1304.
Defendant Deserio's claim that this action should be dismissed pursuant to CPLR 3211(a) and/or CPLR 5015(a) because the plaintiff purportedly lacks standing to prosecute its claims for foreclosure lacks merit for various reasons. Contrary to the contentions of defense counsel, the standing of a foreclosing plaintiff is not an element of its claim for foreclosure and sale (see JP Morgan Chase Bank Natl . Assoc ., v Butler , 129 AD3d 777, 2015 WL 3605382 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Islar , 122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]). Nor is the issue of standing jurisdictional in nature (see Citimortgage , Inc. v Friedman , 109 AD3d 573, 970 NYS2d 706 [2d Dept 2013]; HSBC Bank USA , N.A. v Taher , 104 AD3d 815, 962 NYS2d 301 [2d Dept 2013]). Instead, a lack of standing is merely an affirmative defense that is waived when a defendant defaults in answering the summons and complaint (see FCDB FF1 2008-Trust v Videjus , 131 AD3d 1004, 17 NYS3d 54 [2d Dept 2015]; U.S. Bank N.A. v Flowers , 128 AD3d 951, 952—953, 11 NYS3d 186 [2d Dept 2015]; HSBC Bank USA , N.A. v Simmons , 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015]; HSBC Bank USA , N.A. v Forde , 124 AD3d 840, 842, 2 NYS3d 561 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Islar , 122 AD3d 566, supra; Bank of NY v Cepeda , 120 AD3d 451, 453, 989 NYS2d 910 [2d Dept 2014]; JP Morgan Mtge . Acquisition Corp. v Hayles , 113 AD3d 821, 979 NYS2d 620 [2d Dept 2014]; Deutsche Bank Trust Co . Americas v Cox , 110 AD3d 760, 973 NYS2d 662 [2d Dept 2013]).
Once waived, a standing defense may not be resurrected by its assertion in support of an untimely motion to dismiss brought pursuant to CPLR 3211(a) by a defendant in default (see EMC Mtge . Corp. v Gass , 114 AD3d 1074, 981 NYS2d 814 [3d Dept 2014]; JP Morgan Mtge . Acquisition Corp. v Hayles , 113 AD3d 821, 979 NYS3d 620 [2d Dept 2014] U .S. Bank N.A. v Gonzalez , 99 AD3d 694, 694—695, 952 NYS2d 59 [2d Dept 2012]; U .S. Bank Natl. Ass'n. v Denaro , 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Deutsche Bank Trust Co ., v Stathakis , 90 AD3d 983, 935 NYS2d 651[2d Dept 2011]; McGee v Dunn , 75 AD3d 624, 625, 906 NYS2d 74 [2d Dept 2010]; Countrywide Home Loans , Inc. v Delphonse , 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]). Nor may it be asserted in support of an application to vacate a default under CPLR 5015(a)(1) or 3012(d) (see Wells Fargo Bank , Nat. Ass'n. v Laviolette , 128 AD3d 1054, 109 NYS3d 538 [2d Dept 2015]; JP Morgan Mtge . Acquisition Corp. v Hayles , 113 AD3d 821, supra; Citibank , N.A. v Swiatkowski , 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012]; CitiMortgage , Inc. v Rosenthal , 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]; HSBC Bank , USA v Dammond , 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]). Here, the summons and complaint were served upon defendant Deserio in April of 2014 and he neither moved to dismiss the complaint pursuant to CPLR 3211(a) due to a lack of standing or served in an answer reserving that defense. Defendant Deserio thereby waived any standing defense he may have possessed and he may not obtain a direct dismissal of the complaint upon that waived standing defense.
Nor may defendant Deserio succeed on his demand for a direct and immediate dismissal of the complaint on grounds that the plaintiff failed to comply with the pre-action, ninety day notice of default and cure required by RPAPL § 1304. While such notice has been referred to by certain controlling, appellate case authorities as a mandatory condition precedent to the commencement of the action, non-compliance therewith, may be raised at any time during the pendency of a foreclosure action ( see Aurora Loan Servs ., LLC v Weisblum , 85 AD3d 95, 102—108, 923 NYS2d 609 [2d Dept. 2011]; First Nat. Bank of Chicago v Silver , 73 AD3d 162, 899 NYS2d 256 [2d Dept 2010]), more recent appellate case authorities have characterized it as a "defense" ( see Citimortgage , Inc. v Espinal , 134 AD3d 876, 23 NYS3d 251 [2d Dept 2015], citing Pritchard v Curtis , 101 AD3d 1502, 1504, 957 NYS2d 440 [3d Dept 2012]; PHH Mtge . Corp. v Celestin , 130 AD3d 703, 11 NYS3d 871 [2d Dept 2015]; see also RPAPL § 1302[2]). Unlike the affirmative defense of standing, which is waived for all purposes if not asserted in an answer or pre-answer motion to dismiss, a defense premised upon a lack of compliance with the notice provisions of RPAPL § 1304 may be raised by an answering defendant even if such defense was not asserted in his or her answer ( see Citimortgage , Inc. v Espinal , 134 AD3d 876, supra; Pritchard v Curtis , 101 AD3d 1502 Citimortgage v Pembelton , 39 Misc 3d 454, 960 NYS2d 867 [Sup. Court Suffolk County 2013]).
However, non-appearing defendants who defaulted in appearing in the action by answer have been held to have waived defenses predicated upon statutory notice requirements such as those imposed by RPAPL § 1304 or § 1303, and they may not assert these defenses against a foreclosing plaintiff unless such defendants can establish discretionary grounds for a vacatur of their default (see PHH Mtge . Corp. v Celestin , 130 AD3d 703, supra; see also Citimortgage v Baser , ___ AD3d___, 2016 WL 802996 [2d Dept 2016]; HSBC Mortgage Services v Talip , 111 AD3d 889, 975 NYS2d 887 [2d Dept 2013]). This result is dictated by the non-jurisdictional nature of a defense premised upon non-compliance with statutory notice requirements (see PHH Mtge . Corp. v Celestin , 130 AD3d 703, supra; also Citimortgage v Baser , ___ AD3d___, 2016 WL 802996, supra; Summitbridge Credit Investments , LLC v Wallace , 128 AD3d 676, 9 NYS3d 320 [2d Dept 2015]; Pritchard v Curtis , 101 AD3d 1502, 1504, supra; Deutsche Bank Natl . Trust Co. v Posner , 89 AD3d 674, 933 NYS2d 52 [2d Dept 2011]; Citimortgage v Pembelton , 39 Misc 3d 454, supra). Accordingly, a direct and immediate dismissal of a foreclosure action upon grounds of non-compliance with the statutory notice provisions prescribed by RPAPL § 1304 or § 1303, may only be raised by a defendant in default who establishes discretionary grounds for the vacatur of such default (see Citimortgage v Baser , ___ AD3d___, 2016 WL 802996, supra; PHH Mtge. Corp. v Celestin , 130 AD3d 703, supra; HSBC Mortgage Services v Talip , 111 AD3d 889, supra).
Here, an immediate and direct dismissal of this action pursuant to CPLR 3211(a)(5) or (a)(7) due to the plaintiff's purported failure to satisfy a "condition precedent" to the prosecution of its claim for foreclosure and sale is not available to defendant Deserio due to his status as a defendant whose default in answering has been fixed and determined by the order of reference previously entered herein. Those portions of the instant motion wherein defendant Deserio seeks such a dismissal are thus denied.
To properly assert his RPAPL §1304 defense, defendant Deserio must successfully establish the elements necessary to secure a discretionary vacatur of his default in timely answering the summons and complaint. This relief is demanded by defendant Deseiro as an alternative to the direct dismissal of the complaint he requested on the grounds discussed above.
It is well established that to obtain a discretionary vacatur of an order or judgment entered upon default or to extend the time to appear by answer, the defendant must satisfy both prongs of the excusable default test which courts employ in determining applications for such relief pursuant to CPLR 5015(a)(1) and/or CPLR 3012(d). In either setting, the moving defendant must demonstrate a reasonable excuse for the default and the possession of a potentially meritorious defense, the material facts of which, must be advanced in an affidavit of the defendant or in a proposed verified answer attached to the moving papers (see Deutsche Bank Nat . Assoc. v Kudlip , — AD3d — 2016 WL 717958 [2d Dept 2016]; Citimortgage , Inc. v Kowalski , 130 AD3d 558, 13 NYS3d 468 [2d Dept 2015]; U.S. Bank Nat. Assoc. v Sachdev , 128 AD3d 807, supra; Emigrant Bank v O . Carl Wiseman , 127 AD3d 1013, 6 NYS3d 670 [2d Dept 2015]; E*Trade Bank v Vasquez , 126 AD3d 933, supra; Karalis v New Dimensions HR , Inc ., 105 AD3d 707, 962 NYS2d 647 [2d Dept 2013]). This standard thus governs motions resting upon grounds of excusable default that are made both prior and subsequent to a formal fixation of a default on the part of the defendant by the court (see CPLR 5015[a][1]; 3012[d]; see Eugene Di Lorenzo , Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141, 501 NYS2d 8 [1986]; Juseinoski v. Board of Educ. of City of NY , 15 AD3d 353, 356, 790 NYS2d 162 [2d Dept 2005]; see also Bac Home Loans Serv., LP v Reardon , 132 AD3d 790, 18 NYS3d 664 [2d Dept 2015; no judgment or order of reference]; Wells Fargo Bank v Besemer , 131 AD3d 1047, 16 NYS3d 819 [2d Dept 2015; judgment entered]; Morgan Stanley Mtge . Loan Trust 2006-17XS v Waldman , 131 AD3d 1140, 16 NYS2d 331[2d Dept 2015; order of reference issued]; Community Preservation Corporation v Bridgewater Condominiums , LLC , 89 AD3d 784, 932 NYS2d 378 [2d Dept 2011; no order of reference or judgment]).
The determination of that which constitutes a reasonable excuse lies within the discretion of the Supreme Court (see Mannino Development , Inc. v Linares , 117 AD3d 995, 986 NYS2d 578 [2d Dept 2014]; Mellon v Izmirligil , 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011]; Wells Fargo Bank , N.A. v Cervini , 84 AD3d 789, supra; Maspeth Fed . Sav. & Loan Assn. v McGown , 77 AD3d 890, supra; Star Indus . Inc. v Innovative Beverages , Inc ., 55 AD3d 903, 904, 866 NYS2d 357 [2d Dept 2008]). Although a defect in service may, under some circumstances, constitute a reasonable excuse for a default (see Equicredit Corp . of Am. v Campbell , 73 AD3d 119, 900 NYS2d 907 [2d Dept 2010]; Ramirez v Romualdo , 25 AD3d 680, 808 NYS2d 733 [2d Dept 2006]; see also ACT Prop ., LLC v Garcia , 102 AD3d 712, supra; Dupps v Betancourt , 99 AD3d 855, supra), where a claim of defective service is not established and the defendant relies entirely upon such claim as the justification for the default, an excusable default under CPLR 5015(a)(1) or 3012(d) is not established (see U .S. Bank , Natl. Ass'n. v Smith , 132 AD3d 848, 19 NYS3d 62 [2d Dept 2015]; Summitbridge Credit Investments , LLC v Wallace , 128 AD3d 676, supra; Community W. Bank , N.A. v Stephen , 127 AD3d 1008, 19 NYS3d 62 [2d Dept 2015]; U . S. Bank Natl. Assoc. v Harding , 124 AD3d 766, 998 NYS2d 667 [2d Dept 2014]; HSBC Bank USA , Nat. Assoc. v Miller , 121 AD3d 1044, 995 NYS2d 198 [2d Dept 2014]; Bank of New York v Samuels , 107 AD3d 653, 968 NYS2d 2013]; Deutsche Bank Natl. Trust Co. v Pietrnaico , 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; Tadco Constr . Corp. v Allstate Ins. Co., 73 AD3d 1022, 900 NYS2d 687 [2d Dept 2010] ).
A lack of compliance with RPAPL § 1304 will also fail to qualify as a reasonable excuse for the default in answering, since the time to answer begins to run upon service of the summons rather than from the service of any of the statutory notices required by RPAPL Article 13 (see CPLR 320; 308). However, a defendant in default may properly assert non-compliance with the notice provisions of RPAPL § 1304 and other like statutory provisions as a potentially meritorious defense to the action in support of such defendant's motion to vacate the default, whereas a waived standing defense may not be so asserted (see HSBC Bank , USA v Dammond , 59 AD3d 679, supra; Citimortgage v Pembelton , 39 Misc 3d 454, supra).
Indeed, the purpose of the RPAPL § 1304 notice is to inform the borrower prior to suit of his or her contractual default and advise of the availability of pre-litigation assistance aimed at avoiding the loss of the home by way of foreclosure and sale (see Aurora Loan Servs ., LLC v Weisblum , 85 AD3d 95, 102—108, supra). Due to its non-jurisdictional nature, the failure to comply with the notice requirements cannot serve to extend the borrower's time to answer the complaint as such time is fixed in Article 3 of the CPLR and the Legislature chose not to amend it when it enacted the various borrower protection statutes known such as Real Property Law § 265—a [ HETPA]).
Here, no reasonable excuse was advanced by defendant Deserio in support of his application to vacate his default in answering and for leave to extend the time to answer under CLR 3012(d). The defendant's claims of improper service of process and lack of standing have been found by this court to be lacking in merit or waived and thus cannot serve as a reasonable excuse for his default in answering (see U .S. Bank , Natl. Ass'n. v Smith , 132 AD3d 848, supra; Community W. Bank , N.A. v Stephen , 127 AD2d 1008, supra; HSBC Bank , USA v Dammond , 59 AD3d 679, supra). While the defendant's claims for non-compliance with RPAL § 1304 may be properly advanced to satisfy the meritorious defense prong of the test used to determine his application for a discretionary vacatur of his default under CPLR 5015(a)(1) and/or CPLR 3012(d), it does not satisfy the reasonable excuse prong of such test as the moving papers failed to demonstrate that any such non-compliance caused, contributed or otherwise facilitated the defendant's default in answering following service of the summons and complaint (see PHH Mtge . Corp. v Celestin , 130 AD3d 703, supra; also see Citimortgage v Baser , — AD3d — 2016 WL 802996, supra; Pritchard v Curtis , 101 AD3d 1502, 1504, supra; Citimortgage v Pembelton , 39 Misc 3d 454, supra). The court thus finds that defendant Deserio is not entitled to a vacatur of his default in answering nor leave to file a late answer pursuant to CPLR 5015(a)(1) and 3012(d), as no reasonable excuse for his default in answering is advanced in his cross moving papers. The absence of a reasonable excuse renders it unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense to the action (see Summitbridge Credit Investments , LLC v Wallace , 128 AD3d 676, supra; see U .S. Bank N.A. v Hasan , 126 AD3d at 684, 5 NYS3d 460 [2d Dept 2015]).
To the extent that defendant Deserio seeks a vacatur of his default in answering and a vacatur of the prior order of reference in the interests of justice, that application is denied. No grounds for the invocation of the court's inherent powers was advanced, let alone established, in the cross moving papers of defendant Deserio ( see Summitbridge Credit Investments , LLC v Wallace , 128 AD3d 676, supra; HSBC Bank USA , Natl. Assn. v Miller , 121 AD3d 1044, supra; HSBC Mortgage Services v Talip , 111 AD3d 889, supra).
In view of the foregoing, the cross motion (#003) by defendant Deserio for dismissal of the complaint or for vacatur of his default in answering and leave to serve a late answer is denied.
Those portions of the plaintiff's motion-in-chief (#002) wherein it seeks an order confirming the report of the referee to compute is granted as the moving papers sufficiently established the plaintiff's entitlement to such relief (see Cafaro v Tineo , 135 AD3d 887, 22 NYS3d 909 [2d Dept 2016]; HSBC Bank USA , Nat. Assoc. v Simmons , 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015]). Also granted are the remaining portions of the plaintiff's motion wherein it seeks issuance of a judgment of foreclosure and sale.
Proposed Order and Judgment, as modified by the Court to reflect the terms of this Memo Decision and Order, has been marked signed. DATED: 3/7/16 ___________________________ THOMAS F. WHELAN, J.S.C.