Opinion
2013-01-16
TUTHILL FINANCE, L.P., respondent, v. Albert UJUETA, appellant, et al., defendants.
Katz & Klein, Croton–on–Hudson, N.Y. (Gerald M. Klein of counsel), for appellant. Robinowitz Cohlan Dubow & Doherty, LLP, White Plains, N.Y. (Bruce Minkoff of counsel), for respondent.
Katz & Klein, Croton–on–Hudson, N.Y. (Gerald M. Klein of counsel), for appellant. Robinowitz Cohlan Dubow & Doherty, LLP, White Plains, N.Y. (Bruce Minkoff of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Albert Ujueta appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered August 3, 2010, as denied that branch of his motion which was to vacate a judgment of foreclosure of the same court entered December 5, 2008, upon his default in appearing and answering.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A defendant seeking to vacate a default in appearing and answering the complaint must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action ( see CPLR 5015[a][1]; Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561;Pursoo v. Ngala–El, 89 A.D.3d 712, 931 N.Y.S.2d 914;Citimortgage, Inc. v. Brown, 83 A.D.3d 644, 645, 919 N.Y.S.2d 894). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Segovia v. Delcon Constr. Corp., 43 A.D.3d 1143, 1144, 842 N.Y.S.2d 536;see Pimento v. Rojas, 94 A.D.3d 844, 845, 941 N.Y.S.2d 517;Alberton Devs., Inc. v. All Trade Enters., Inc., 74 A.D.3d 1000, 902 N.Y.S.2d 403).
The appellant's contention that health issues prevented him from answering or timely appearing in the action is unsupported by evidence substantiating that he was incapacitated for any part of the default period ( see Price v. Salvo, 203 A.D.2d 349, 610 N.Y.S.2d 80;Knight v. City of New York, 193 A.D.2d 720, 722, 597 N.Y.S.2d 737;Hargett v. Health & Hosps. Corp. of City of N.Y., 88 A.D.2d 633, 450 N.Y.S.2d 235). The appellant's remaining arguments similarly do not establish that his default was excusable.
As the appellant failed to demonstrate a reasonable excuse for his delay, we need not address whether he established the existence of a potentially meritorious defense ( see O'Donnell v. Frangakis, 76 A.D.3d 999, 1000, 908 N.Y.S.2d 589;Toland v. Young, 60 A.D.3d 754, 755, 873 N.Y.S.2d 916;Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277).
Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to vacate the judgment of foreclosure.