Opinion
2016–06046 Index No. 16521/08
09-12-2018
OPTION ONE MORTGAGE CORPORATION, etc., respondent, v. Winston ROSE, et al., defendants, Sprint Group, LLC, appellant.
Warner & Scheuerman, New York, N.Y. (Jonathon D. Warner and Karl E. Scheuerman of counsel), for appellant. Leopold & Associates, PLLC, Armonk, N.Y. (Richard P. O'Brien of counsel), and Greenberg Traurig, LLP, New York, N.Y. (John C. Molluzzo, Jr., of counsel), for respondent (one brief filed).
Warner & Scheuerman, New York, N.Y. (Jonathon D. Warner and Karl E. Scheuerman of counsel), for appellant.
Leopold & Associates, PLLC, Armonk, N.Y. (Richard P. O'Brien of counsel), and Greenberg Traurig, LLP, New York, N.Y. (John C. Molluzzo, Jr., of counsel), for respondent (one brief filed).
JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Sprint Group, LLC, appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), entered April 22, 2016. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were to vacate an order of the same court dated April 16, 2013, directing dismissal of the action, and to restore the action to the active calendar.
ORDERED that the order entered April 22, 2016, is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were to vacate the order dated April 16, 2013, directing dismissal of the action, and to restore the action to the active calendar are denied.
In June 2008, the plaintiff commenced this action against the defendant Winston Rose, among others, to foreclose a mortgage. In an order dated August 17, 2009, the Supreme Court, upon Rose's failure to answer the complaint, granted the plaintiff's motion, inter alia, for leave to enter a default judgment and for an order of reference. Thereafter, by order dated April 16, 2013, the court directed dismissal of the action without prejudice, in effect, pursuant to 22 NYCRR 202.27, after neither Rose nor the plaintiff appeared for a scheduled status conference (hereinafter the order of dismissal). In October 2015, the plaintiff moved, inter alia, to vacate the order of dismissal and to restore the action to the active calendar. Nonparty Sprint Group, LLC (hereinafter Sprint), alleging that it purchased the subject property pursuant to a deed recorded on May 20, 2014, cross-moved pursuant to CPLR 1012(a) and 1013 for leave to intervene in the action as a party defendant. The court granted both the plaintiff's motion and Sprint's cross motion. Sprint appeals from so much of the order as granted those branches of the plaintiff's motion which were to vacate the order of dismissal and to restore the action to the active calendar.
In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a][1] ; Stein v. Doukas, 157 A.D.3d 743, 744, 68 N.Y.S.3d 495 ; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 809, 24 N.Y.S.3d 523 ; Mazzio v. Jennings, 128 A.D.3d 1032, 1032, 8 N.Y.S.3d 596 ; Hanscom v. Goldman, 109 A.D.3d 964, 965, 972 N.Y.S.2d 76 ). The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see Polsky v. Simon, 145 A.D.3d 693, 693, 43 N.Y.S.3d 101 ; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631 ; Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854 ). The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005 ) where the claim is supported by a detailed and credible explanation of the default (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83 ; Bank of N.Y. v. Young, 123 A.D.3d 1068, 1069, 2 N.Y.S.3d 127 ; 1158 Props., LLC v. 1158 McDonald, LLC, 104 A.D.3d 658, 658, 961 N.Y.S.2d 234 ; 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 ).
Here, the plaintiff's bare allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default (see Bank of N.Y. v. Young, 123 A.D.3d at 1069, 2 N.Y.S.3d 127 ; Siculan v. Koukos, 74 A.D.3d 946, 947, 902 N.Y.S.2d 627 ; Leibowitz v. Glickman, 50 A.D.3d 643, 644, 855 N.Y.S.2d 193 ; Bravo v. New York City Hous. Auth., 253 A.D.2d 510, 676 N.Y.S.2d 871 ). Moreover, the plaintiff failed to provide a reasonable excuse for its lengthy delay in moving to vacate the order of dismissal (see Wright v. City of Poughkeepsie, 136 A.D.3d at 809, 24 N.Y.S.3d 523 ; TD Bank, N.A. v. Spector, 114 A.D.3d 933, 934, 980 N.Y.S.2d 836 ).
Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether it demonstrated a potentially meritorious cause of action (see Stein v. Doukas, 157 A.D.3d at 744, 68 N.Y.S.3d 495 ; Wright v. City of Poughkeepsie, 136 A.D.3d at 809, 24 N.Y.S.3d 523 ).
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were to vacate the order of dismissal and to restore the action to the active calendar.
LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.