Opinion
2013-07086
05-06-2015
ONE WEST BANK, FSB, respondent, v. Martha VALDEZ, appellant, et al., defendants.
Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant.
Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant.
PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action to foreclose a mortgage, the defendant Martha Valdez appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Queens County (Rios, J.), entered May 20, 2013, which, inter alia, denied her motion pursuant to CPLR 3012(d) to compel the plaintiff to accept her late answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In April 2011, the plaintiff commenced this action to foreclose a mortgage, alleging that the defendant Martha Valdez defaulted on her payment obligations under the note secured by the mortgage. Valdez failed to timely appear or answer the complaint (see CPLR 320[a] ; 3012[c] ). In May 2012, Valdez filed an answer, which the plaintiff rejected as untimely. Subsequently, Valdez moved to dismiss the complaint insofar as asserted against her based on, among other things, lack of standing. Valdez separately moved to compel the plaintiff to accept her late answer. The Supreme Court denied the motions.
“To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 995, 986 N.Y.S.2d 578 ; see CPLR 3012[d] ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ; see Mannino Dev., Inc. v. Linares, 117 A.D.3d at 995, 986 N.Y.S.2d 578 ; JP Morgan Chase Bank, N.A. v. Palma, 114 A.D.3d 645, 645, 979 N.Y.S.2d 832 ).
Here, the Supreme Court providently exercised its discretion in determining that Valdez's conclusory and unsubstantiated allegations of neglect by her prior counsel did not constitute a reasonable excuse for her delay in answering the complaint (see Wood v. Tuttle, 106 A.D.3d 1393, 1394, 968 N.Y.S.2d 613 ; HSBC Bank USA N.A. v. Wider, 101 A.D.3d 683, 683, 955 N.Y.S.2d 202, 957 N.Y.S.2d 125; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789, 921 N.Y.S.2d 643 ; Desiderio v.
Devani, 24 A.D.3d 495, 496, 806 N.Y.S.2d 240 ). Since Valdez failed to offer a reasonable excuse, it is not necessary to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense (see Citimortgage, Inc. v. Stover, 124 A.D.3d 575, 2 N.Y.S.3d 147 ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32 ).
Accordingly, the Supreme Court properly denied Valdez's motion to compel the plaintiff to accept her late answer (see Citimortgage, Inc. v. Stover, 124 A.D.3d 575, 2 N.Y.S.3d 147 ). Valdez's remaining contentions are academic in light of this determination.