Opinion
2019–10161 Index No. 17094/10
04-20-2022
DEUTSCHE BANK TRUST COMPANY AMERICAS, etc., appellant, v. Hwa Joong YOON, et al., defendants.
LOGS Legal Group, LLP, Rochester, NY (Virginia C. Grapensteter of counsel), for appellant.
LOGS Legal Group, LLP, Rochester, NY (Virginia C. Grapensteter of counsel), for appellant.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered October 16, 2018. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Martin J. Schulman, J.), dated March 23, 2016, among other things, sua sponte, directing dismissal of the complaint without prejudice, and to restore the action to the active calendar.
ORDERED that the order entered October 16, 2018, is affirmed insofar as appealed from, without costs or disbursements.
In 2010, the plaintiff commenced this action to foreclose a mortgage on certain real property located in Queens. By order entered February 4, 2014 (hereinafter the 2014 order), the Supreme Court granted the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint and for an order of reference, and directed the plaintiff to "Submit Order." On or about March 11, 2016, the plaintiff filed and served a notice of settlement and proposed order. By order dated March 23, 2016, the court, among other things, sua sponte, directed dismissal of the complaint without prejudice.
By notice of motion dated June 21, 2018, the plaintiff moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated March 23, 2016, and to restore the action to the active calendar. By order entered October 16, 2018, the Supreme Court denied those branches of the plaintiff's motion. The plaintiff appeals.
CPLR 5015(a)(1) authorizes a court to relieve a party from an order or judgment, on motion, upon the ground of "excusable default" (see U.S. Bank, N.A. v. Hossain, 200 A.D.3d 1094, 155 N.Y.S.3d 799 ; Deutsche Bank Natl. Trust Co. v. Morales, 170 A.D.3d 803, 804, 93 N.Y.S.3d 911 ). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where that claim is supported by a detailed and credible explanation of the default at issue" ( Ki Tae Kim v. Bishop, 156 A.D.3d 776, 777, 67 N.Y.S.3d 655 ; see Konstantakopoulos v. Karakash, 185 A.D.3d 563, 563–564, 124 N.Y.S.3d 807 ). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" ( Hamilton v. New York Hosp. Queens, 183 A.D.3d 621, 622, 123 N.Y.S.3d 172 ; see Lyubomirsky v. Lubov Arulin, PLLC, 125 A.D.3d 614, 3 N.Y.S.3d 377 ). "[M]ere neglect is not a reasonable excuse" ( OneWest Bank, FSB v. Singer, 153 A.D.3d 714, 716, 59 N.Y.S.3d 480 ; see Konstantakopoulos v. Karakash 185 A.D.3d at 564, 124 N.Y.S.3d 807 ).
Here, contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in determining that the plaintiff failed to proffer a reasonable excuse for its default. The plaintiff's explanation for its delay of more than two years in serving and filing the notice of settlement and proposed order, as directed by the 2014 order, was vague and unsubstantiated and, thus, did not constitute a reasonable excuse (see U.S. Bank, N.A. v. Blagman, 188 A.D.3d 1284, 136 N.Y.S.3d 393 ; Taylor Appraisals v. Prokop, 99 A.D.3d 985, 952 N.Y.S.2d 451 ; Ogunmoyin v. 1515 Broadway Fee Owner, LLC, 85 A.D.3d 991, 992, 925 N.Y.S.2d 844 ). Since the plaintiff failed to proffer a reasonable excuse for its default, we need not reach the issue of whether it had a potentially meritorious cause of action (see 1200 Bedford Ave., LLC v. Grace Baptist Church, 199 A.D.3d 971, 154 N.Y.S.3d 789 ; U.S. Bank N.A. v. Moster, 196 A.D.3d 663, 665, 152 N.Y.S.3d 459 ).
The plaintiff's remaining contention is without merit.
BRATHWAITE NELSON, J.P., CHAMBERS, ROMAN and ZAYAS, JJ., concur.