Opinion
2015-09438. Index No. 1807/13.
08-16-2017
ONEWEST BANK, FSB, respondent, v. Solomon SINGER, appellant, et al., defendants.
Law Office of Paul R. Kenney, LLC, New York, NY, for appellant. McCabe, Weisberg & Conway, P.C., New Rochelle, NY (Kiyam J. Poulson of counsel), for respondent.
Law Office of Paul R. Kenney, LLC, New York, NY, for appellant.
McCabe, Weisberg & Conway, P.C., New Rochelle, NY (Kiyam J. Poulson of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.
In an action to foreclose a mortgage, the defendant Solomon Singer appeals from an order of the Supreme Court, Kings County (Ash, J.), dated August 12, 2015, which granted the plaintiff's motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Schmidt, J.) dated January 8, 2015, directing the dismissal of the complaint upon the plaintiff's failure to appear at conferences, and to restore the action to the active calendar.
ORDERED that the order dated August 12, 2015, is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiff's motion is denied.
On July 12, 2006, the defendant Solomon Singer obtained a loan from nonparty Fairmont Funding, Ltd. In return, Singer executed a note, which was secured by a mortgage on real property. Thereafter, Singer allegedly defaulted by failing to make payments in accordance with the terms of the note. In January 2013, the plaintiff, OneWest Bank, FSB (hereinafter OneWest), commenced this action to foreclose the mortgage against Singer, among others. In July 2014, following several unsuccessful settlement conferences, OneWest was directed to file an appropriate motion, and a conference was scheduled for November 5, 2014. Approximately one month before the conference, on October 1, 2014, OneWest executed a consent to change attorney form. When OneWest failed to appear at the November 5, 2014, conference, the Supreme Court adjourned the matter to January 8, 2015, and directed that the complaint would be dismissed if OneWest failed to appear on that date. On January 8, 2015, the court issued an order directing the dismissal the complaint based on OneWest's failure to appear at the conferences.
On May 4, 2015, OneWest moved pursuant to CPLR 5015(a)(1) to vacate the order entered upon its default in appearing at the conferences and to restore the action to the active calendar. In support of its motion, OneWest alleged that it was unaware of the scheduled conferences "due to law office confusion" following the substitution of counsel. The Supreme Court granted the motion. Singer appeals.
A plaintiff seeking to vacate a default in appearing at a conference is required to demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action (see CPLR 5015[a][1] ; Bayview Loan Servicing, LLC v. Martano, 131 A.D.3d 1187, 1189, 18 N.Y.S.3d 71 ; GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83 ; Hagen–Meurer v. Balakhane, 127 A.D.3d 1020, 1020, 5 N.Y.S.3d 889 ; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197, 725 N.Y.S.2d 57 ). Although "[a] motion to vacate a default is addressed to the sound discretion of the motion court" ( Aurora Loan Servs., LLC v. Ahmed, 122 A.D.3d 557, 557–558, 996 N.Y.S.2d 92 ; see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631 ; Forward Door of N.Y., Inc. v. Forlader, 41 A.D.3d 535, 836 N.Y.S.2d 440 ), the defaulting party must submit evidence in admissible form establishing both a reasonable excuse and a potentially meritorious cause of action or defense (see HSBC Bank USA N.A. v. Nuteh 72 Realty Corp., 70 A.D.3d 998, 999, 895 N.Y.S.2d 497 ; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553, 554, 725 N.Y.S.2d 76 ).
A court has the discretion to accept law office failure as a reasonable excuse for a party's default (see CPLR 2005 ; Onishenko v. Ntansah, 145 A.D.3d 910, 911, 43 N.Y.S.3d 504 ; JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d 1048, 1049, 996 N.Y.S.2d 68 ; Forward Door of N.Y., Inc. v. Forlader, 41 A.D.3d at 535, 836 N.Y.S.2d 440 ; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d at 553, 725 N.Y.S.2d 76 ). However, "it was not the Legislature's intent to routinely excuse such defaults" ( Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d at 554, 725 N.Y.S.2d 76 ; see Onishenko v. Ntansah, 145 A.D.3d at 911, 43 N.Y.S.3d 504; Ortega v. Bisogno & Meyerson, 38 A.D.3d 510, 511, 831 N.Y.S.2d 259 ), and mere neglect is not a reasonable excuse (see Onishenko v. Ntansah, 145 A.D.3d at 911, 43 N.Y.S.3d 504; GMAC Mtge., LLC v. Guccione, 127 A.D.3d at 1138, 9 N.Y.S.3d 83 ; JP Morgan Chase Bank, N.A. v. Russo, 121 A.D.3d at 1049, 996 N.Y.S.2d 68 ; Ortega v. Bisogno & Meyerson, 38 A.D.3d at 511, 831 N.Y.S.2d 259 ; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d at 554, 725 N.Y.S.2d 76 ).
Contrary to OneWest's contention, it failed to provide a detailed and credible explanation of the default (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d at 1138, 9 N.Y.S.3d 83 ; Aurora Loan Servs., LLC v. Ahmed, 122 A.D.3d at 558, 996 N.Y.S.2d 92 ; People's United Bank v. Latini Tuxedo Mgt., LLC, 95 A.D.3d 1285, 1286, 944 N.Y.S.2d 909 ; Kohn v. Kohn, 86 A.D.3d 630, 630, 928 N.Y.S.2d 55 ; Remote Meter Tech. of NY, Inc. v. Aris Realty Corp., 83 A.D.3d 1030, 1032, 922 N.Y.S.2d 440 ). Rather, counsel's affirmation in support of the motion contained only the conclusory and undetailed allegation of "law office confusion" after being substituted as counsel for OneWest, which does not constitute a reasonable excuse (see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d at 852, 32 N.Y.S.3d 631; Aurora Loan Servs., LLC v. Lucero, 131 A.D.3d 496, 497, 14 N.Y.S.3d 707 ; Forward Door of N.Y., Inc. v. Forlader, 41 A.D.3d at 535, 836 N.Y.S.2d 440 ; Piton v. Cribb, 38 A.D.3d 741, 742, 832 N.Y.S.2d 274 ; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d at 553, 725 N.Y.S.2d 76 ). No other evidence was submitted to corroborate the allegation. OneWest, therefore, failed to demonstrate a reasonable excuse for its default (see Onishenko v. Ntansah, 145 A.D.3d at 912, 43 N.Y.S.3d 504; U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d at 852, 32 N.Y.S.3d 631; Aurora Loan Servs., LLC v. Lucero, 131 A.D.3d at 497, 14 N.Y.S.3d 707 ; GMAC Mtge., LLC v. Guccione, 127 A.D.3d at 1138, 9 N.Y.S.3d 83 ). Accordingly, the Supreme Court improvidently exercised its discretion in granting OneWest's motion to vacate its default (see GMAC v. Minewiser, 115 A.D.3d 707, 708, 981 N.Y.S.2d 580 ; Ayiku v. Viteritti, 54 A.D.3d 789, 864 N.Y.S.2d 465 ; Westchester Med. Ctr. v. ELRAC,
Inc., 301 A.D.2d 518, 519, 753 N.Y.S.2d 387 ; Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d at 553, 725 N.Y.S.2d 76 ; see also Bender v. Autism Speaks, Inc., 139 A.D.3d 989, 991, 32 N.Y.S.3d 312 ).
In light of our determination, we need not address the parties' remaining contentions.