Opinion
2012-02-14
TRIBECA LENDING CORPORATION, appellant, v. Rosemary CORREA, respondent, et al., defendants.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Sara Z. Boriskin and Jonathan M. Cohen of counsel), for appellant. Law Offices of Robert E. Brown, P.C., New York, N.Y. (Nicholas M. Moccia of counsel), for respondent.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Sara Z. Boriskin and Jonathan M. Cohen of counsel), for appellant. Law Offices of Robert E. Brown, P.C., New York, N.Y. (Nicholas M. Moccia of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 3, 2010, as granted those branches of the motion of the defendant Rosemary Correa which were, in effect, pursuant to CPLR 5015(a)(1) to vacate a judgment of foreclosure and sale of the same court dated January 22, 2008, entered upon her default in appearing or answering the complaint, to estop the referee from transferring title to certain real property, and for leave to file and serve an answer with counterclaims.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and those branches of the motion of the defendant Rosemary Correa which were, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of foreclosure and sale, to estop the referee from transferring title to certain real property, and for leave to file and serve an answer with counterclaims are denied.
In order to prevail on that branch of her motion which was, in effect, to vacate the judgment of foreclosure and sale entered upon her default in appearing or answering the complaint, the defendant Rosemary Correa was required to demonstrate both a reasonable excuse for her default and the existence of a potentially meritorious defense to the action ( see CPLR 5015 [a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; see Swedbank, AB, N.Y. Branch v. Hale Ave. Borrower, LLC, 89 A.D.3d 922, 923–924, 932 N.Y.S.2d 540; Cohen v. Romanoff, 83 A.D.3d 989, 924 N.Y.S.2d 796). Correa failed to proffer any explanation for her default ( see Maida v. Lessing's Rest. Servs., Inc., 80 A.D.3d 732, 915 N.Y.S.2d 316; Alterbaum v. Shubert Org., Inc., 80 A.D.3d 635, 914 N.Y.S.2d 681; Abdul v. Hirschfield, 71 A.D.3d 707, 898 N.Y.S.2d 44), and the Supreme Court improvidently exercised its discretion in finding that her explanation for delaying in making the motion was sufficient to constitute a reasonable excuse for her default in appearing or answering the complaint in the first instance ( see Bank of Am. v. Faracco, 89 A.D.3d 879, 879–880, 932 N.Y.S.2d 706). In view of the lack of a reasonable excuse, it is unnecessary to consider whether Correa sufficiently demonstrated the existence of a potentially meritorious defense to the action ( see Maida v. Lessing's Rest. Servs., Inc., 80 A.D.3d at 733, 915 N.Y.S.2d 316; Abdul v. Hirschfield, 71 A.D.3d 707, 898 N.Y.S.2d 44).
Accordingly, those branches of Correa's motion which were to vacate the judgment of foreclosure and sale, to estop the referee from transferring title of the subject real property, and for leave to file and serve an answer with counterclaims should have been denied.