Opinion
8992 Index 25211/16E
04-16-2019
NYCTL 2015-A TRUST, et al., Plaintiffs-Respondents, v. DIFFO PROPERTIES CORP., Defendant-Appellant, The State of New York–Department of Taxation and Finance, et al., Defendants.
Joseph A. Altman P.C., Bronx (Joseph A. Altman of counsel), for appellant. Law Offices of David P. Stich, New York (Stephanie L. Stich of counsel), for respondents.
Joseph A. Altman P.C., Bronx (Joseph A. Altman of counsel), for appellant.
Law Offices of David P. Stich, New York (Stephanie L. Stich of counsel), for respondents.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
CPLR 317 is inapplicable here because this is an action to foreclose on a tax lien (see Administrative Code of the City of N.Y. § 11–340). Under CPLR 5015, "[t]o obtain relief from the default judgment entered against it, defendant was required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action" ( Facsimile Communications Indus., Inc. v. NYU Hosp. Ctr., 28 A.D.3d 391, 391, 812 N.Y.S.2d 869 [1st Dept. 2006] ). Defendant failed to demonstrate a reasonable excuse for its default. Defendant's alleged excuse for the default, that it did not receive service of process in time to defend the action, is unreasonable as the only reason it did not receive service of process was because it failed to keep a current address on file with the Secretary of State for five years (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., Inc., 67 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ; Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 9–10, 739 N.Y.S.2d 49 [1st Dept. 2002] ).
Defendant also failed to demonstrate a meritorious defense to the action. Nothing in defendant's proposed answer or the affidavit of its principal amounts to anything more than "conclusory allegations or ‘vague assertions’ " (id. ). Contrary to defendant's contention, a willingness to pay the tax lien a month after the property was sold is not a defense to a foreclosure action, as it was, at best, a postjudgment offer to settle the case. Likewise, with respect to the alleged "unconscionability" of the sales price, defendant did not submit evidence that the sales price was below market value or that the sales conditions were not aimed at obtaining market value (see People ex rel. Gale v. Tax Commn. of City of N.Y., 17 A.D.2d 225, 227, 233 N.Y.S.2d 501 [1st Dept. 1962], affd 12 N.Y.2d 646, 238 N.Y.S.2d 1026, 188 N.E.2d 529 [1963] ). Thus, the motion court properly denied defendant's motion to vacate the judgment against it.
We have considered the parties' remaining contentions and find them unavailing.