Opinion
2017–03530 Index No. 1317/15
09-23-2020
Cynthia SETTLES, appellant, v. ONEWEST BANK, FSB, et al., respondents, et al., defendants.
Cynthia Settles, Garnerville, NY, appellant pro se. Duane Morris LLP, New York, N.Y. (Robert J. Brener of counsel), for respondents.
Cynthia Settles, Garnerville, NY, appellant pro se.
Duane Morris LLP, New York, N.Y. (Robert J. Brener of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action, inter alia, to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), entered February 2, 2017. The order, insofar as appealed from, denied the plaintiff's motion for leave to enter a default judgment against the defendants OneWest Bank, FSB, and Federal Home Loan Mortgage Corp., upon their failure to appear or answer the complaint, and granted those defendants' cross motion, in effect, to vacate their default and to compel the plaintiff to accept service of their late answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In July 2010, OneWest Bank, FSB (hereinafter OneWest), commenced an action against Cynthia Settles, among others, to foreclose a mortgage on residential property located in Garnerville (hereinafter the premises). The Supreme Court granted OneWest's motion for leave to enter a default judgment against Settles, and entered an order of reference in foreclosure, appointing a referee to ascertain and compute the amount due to OneWest on the note and mortgage related to the premises and to determine whether the premises could be sold in parcels. Thereafter, Settles moved to vacate her default in appearing in the foreclosure action or answering that complaint and OneWest moved for a judgment of foreclosure and sale. The court denied Settles's motion to vacate her default, and granted OneWest's motion for a judgment of foreclosure and sale. The judgment of foreclosure and sale was entered thereafter. Settles then moved, in effect, to vacate the judgment of foreclosure and sale. In an order dated January 23, 2014, the court denied Settles's motion, and the premises were subsequently sold.
In July 2015, Settles commenced this action against, among others, OneWest and Federal Home Loan Mortgage Corp. (hereinafter together the defendants), inter alia, pursuant to RPAPL article 15 to quiet title to the premises. Settles alleged in the complaint, among other things, that in March 2015, she validly rescinded the mortgage loan pursuant to the Federal Truth in Lending Act ( 15 USC § 1601 et seq. ). Thereafter, Settles moved pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendants based upon their failure to appear or answer the complaint. The defendants opposed the motion and, in effect, cross-moved to vacate their default and to compel Settles to accept service of their late answer. In an order entered February 2, 2017, the Supreme Court, inter alia, denied Settles's motion and granted the defendants' cross motion. Settles appeals.
While the defendants promptly sought an extension of time to answer, Settles declined to grant them an extension and moved for leave to enter a default judgment against them. Thereafter, less than two months after their time to answer had expired, the defendants served an answer upon Settles and subsequently cross-moved, in effect, to vacate their default and to compel Settles to accept their late answer. The defendants acted diligently and never intended to abandon their defense (see Spence v. Davis, 139 A.D.3d 703, 704, 31 N.Y.S.3d 539 ; Vellucci v. Home Depot U.S.A., Inc., 102 A.D.3d 767, 767, 957 N.Y.S.2d 874 ; Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d 712, 712, 948 N.Y.S.2d 665 ; Covaci v. Whitestone Constr. Corp., 78 A.D.3d 1108, 1108, 911 N.Y.S.2d 652 ). Furthermore, in light of the absence of prejudice to Settles resulting from the defendants' relatively short delay in serving an answer, the lack of willfulness on the part of the defendants, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying Settles's motion for leave to enter a default judgment against the defendants (see CPLR 2004 ; Vellucci v. Home Depot U.S.A., Inc., 102 A.D.3d at 767, 957 N.Y.S.2d 874 ; Arias v. First Presbyt. Church in Jamaica, 97 A.D.3d at 712, 948 N.Y.S.2d 665 ; Covaci v. Whitestone Constr. Corp., 78 A.D.3d at 1108, 911 N.Y.S.2d 652 ), and in granting the defendants' cross motion, in effect, to vacate their default and to compel Settles to accept service of their late answer (see CPLR 3012[d] ).
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.