Opinion
2017–04391 Index No. 503247/13
05-15-2019
NATIONSTAR MORTGAGE, LLC, Respondent, v. Pearl D. FARRELL, et al., Defendants, Duce Realty, Inc., Appellant.
Umoh Law Firm, PLLC, Brooklyn, N.Y. (Uwem Umoh of counsel), for appellant.
Umoh Law Firm, PLLC, Brooklyn, N.Y. (Uwem Umoh of counsel), for appellant.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.
DECISION & ORDERIn an action to foreclose a mortgage, the defendant Duce Realty, Inc., appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated March 20, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were, in effect, for leave to enter a default judgment against the defendant Duce Realty, Inc., and for an order of reference and denied the cross motion of the defendant Duce Realty, Inc., inter alia, to compel the plaintiff to accept its late answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In June 2013, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Duce Realty, Inc. (hereinafter the defendant). On July 31, 2013, the plaintiff served the summons and complaint upon the defendant by serving the Secretary of State. The defendant failed to timely interpose an answer to the complaint. On or about January 14, 2015, the plaintiff moved, inter alia, in effect, for leave to enter a default judgment against the defendant and for an order of reference. Thereafter, the defendant cross-moved, among other things, to compel the plaintiff to accept a late answer. The Supreme Court, among other things, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant and for an order of reference and denied the defendant's cross motion. The defendant appeals, and we affirm the order insofar as appealed from.
A defendant who has failed to timely answer a complaint must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see Duprat v. BMW Fin. Servs., NA, LLC, 142 A.D.3d 946, 947, 38 N.Y.S.3d 32 ; Citimortgage, Inc. v. Kowalski, 130 A.D.3d 558, 558, 13 N.Y.S.3d 468 ; Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d 1012, 1012, 5 N.Y.S.3d 883 ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Citimortgage, Inc. v. Kowalski, 130 A.D.3d at 558, 13 N.Y.S.3d 468 ; Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d at 1012, 5 N.Y.S.3d 883 ). Here, the defendant failed to provide a reasonable excuse for its delay in answering. Its conclusory denial of receiving a copy of the summons and complaint is insufficient to overcome the presumption of proper service established by the plaintiff (see Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 894, 815 N.Y.S.2d 281 ; General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 A.D.3d 447, 447, 799 N.Y.S.2d 748 ; 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468 ). Since the defendant failed to provide a reasonable excuse for its delay in answering, it is not necessary to determine whether the defendant demonstrated a potentially meritorious defense (see Aurora Loan Servs., LLC v. Movtady, 165 A.D.3d 1025, 1027, 87 N.Y.S.3d 114 ; US Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278 ; Citimortgage, Inc. v. Stover, 124 A.D.3d 575, 576, 2 N.Y.S.3d 147 ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ).
The defendant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were, in effect, for leave to enter a default judgment against the defendant and for an order of reference, and to deny the defendant's cross motion.
RIVERA, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.