Opinion
2016–10776 Index No.1384/06
11-28-2018
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Respondent, v. Emile DORT–RELUS, etc., et al., Defendants, Pierre Lively, Appellant.
C. Steve Okenwa, P.C., New York, NY, for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Richard A. Sillett of counsel), for respondent.
C. Steve Okenwa, P.C., New York, NY, for appellant.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Richard A. Sillett of counsel), for respondent.
SHERI S. ROMAN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Pierre Lively appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated July 28, 2016. The order, in effect, granted that branch of the plaintiff's motion which was to vacate an order of the same court dated December 3, 2015, granting that branch of that defendant's motion which was to vacate a judgment of foreclosure and sale dated November 15, 2006, entered upon the plaintiff's failure to appear at oral argument on the motion.
ORDERED that the order dated July 28, 2016, is affirmed, with costs.
In this action to foreclose a mortgage, the defendant Pierre Lively (hereinafter the defendant) moved in July 2015, inter alia, pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale dated November 15, 2006. By order dated December 3, 2015, the Supreme Court granted the motion, upon the plaintiff's failure to appear at oral argument on the motion. Thereafter, the plaintiff moved to vacate the order dated December 3, 2015, and to restore the defendant's motion to the motion calendar. By order dated July 28, 2016, the court, inter alia, granted that branch of the plaintiff's motion which was to vacate the order dated December 3, 2015. The defendant appeals.
A movant seeking to vacate an order entered upon its failure to appear at oral argument on a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d 784, 787, 49 N.Y.S.3d 169 ; Nunez v. Olympic Fence & Railing Co., Inc., 138 A.D.3d 807, 808, 29 N.Y.S.3d 546 ; Navarrete v. Metro PCS, 137 A.D.3d 1230, 1231, 27 N.Y.S.3d 397 ; Kramarenko v. New York Community Hosp., 134 A.D.3d 770, 772, 20 N.Y.S.3d 635 ).
Here, the plaintiff provided a reasonable excuse for its failure to appear for oral argument on the defendant's motion through the affirmations of its attorney and an outside attorney retained to appear on the motion. Both attorneys averred, based on their personal knowledge of the relevant facts, that the plaintiff never received notice that the return date for the motion, which had been adjourned to December 10, 2015, at the plaintiff's request, was later administratively rescheduled to December 3, 2015 (see McHenry v. Miguel, 54 A.D.3d 912, 913–914, 864 N.Y.S.2d 541 ; Hodges v. Sidial, 48 A.D.3d 633, 634, 852 N.Y.S.2d 340 ; Birky v. Katsilogiannis, 37 A.D.3d 631, 632, 830 N.Y.S.2d 753 ; Simmons v. Pantoja, 306 A.D.2d 399, 400, 760 N.Y.S.2d 881 ; Krebs v. Cabrera, 250 A.D.2d 736, 737, 671 N.Y.S.2d 995 ). The record establishes that the plaintiff moved expeditiously to vacate the default, and there was no evidence that the default was willful or that the defendant was prejudiced by the delay (see Hobbins v. North Star Orthopedics, PLLC, 148 A.D.3d at 787, 49 N.Y.S.3d 169 ; Nunez v. Olympic Fence & Railing Co., Inc., 138 A.D.3d at 808, 29 N.Y.S.3d 546 ; Kramarenko v. New York Community Hosp., 134 A.D.3d at 772, 20 N.Y.S.3d 635 ). Moreover, the plaintiff demonstrated that it had a potentially meritorious opposition to the defendant's motion (see Paul v. Weatherwax, 146 A.D.3d 792, 793, 45 N.Y.S.3d 151 ; Kramarenko v. New York Community Hosp., 134 A.D.3d at 772, 20 N.Y.S.3d 635 ).
Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to vacate the order dated December 3, 3015, entered upon its failure to appear at oral argument on the defendant's motion.
ROMAN, J.P., MILLER, CONNOLLY and IANNACCI, JJ., concur.