Opinion
2013-08737
07-08-2015
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Glenn S. ALBA, appellant, et al., defendants.
Glenn Alba, named herein as Glenn S. Alba, Islip, N.Y., appellant pro se. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for respondent.
Glenn Alba, named herein as Glenn S. Alba, Islip, N.Y., appellant pro se.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for respondent.
Opinion In an action to foreclose a mortgage, the defendant Glenn S. Alba appeals from an order of the Supreme Court, Suffolk County (Hinrichs, J.), dated July 2, 2013, which granted the plaintiff's motion for leave to enter a default judgment and for the appointment of a referee to compute.
ORDERED that the order is affirmed, with costs.
In this action to foreclose a mortgage, the appellant contends that the plaintiff's motion for leave to enter a default judgment against him and for the appointment of a referee to compute should have been denied on the basis that the plaintiff failed to make the motion within one year of his default in answering the complaint (see CPLR 3215[c] ). This contention is not properly before this Court, as it was not raised before the Supreme Court (see General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 A.D.3d 447, 799 N.Y.S.2d 748 ; Zeballos v. Zeballos, 104 A.D.2d 1033, 481 N.Y.S.2d 11 ).
By submitting proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the appellant's failure to appear or answer, the plaintiff demonstrated its entitlement to leave to enter a default judgment and for the appointment of a referee to compute (see CPLR 3215[f] ; U.S. Bank, N.A. v. Razon, 115 A.D.3d 739, 740, 981 N.Y.S.2d 571 ; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 A.D.3d 804, 806, 975 N.Y.S.2d 121 ; Loaiza v. Guzman, 111 A.D.3d 608, 609, 974 N.Y.S.2d 282 ).
To avoid the entry of a default judgment, a defendant must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see King v. King, 99 A.D.3d 672, 672, 951 N.Y.S.2d 565 ; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102,1102, 885 N.Y.S.2d 218 ; Allstate Ins. Co. v. Austin, 48 A.D.3d 720, 720, 851 N.Y.S.2d 375 ; cf. U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 948 N.Y.S.2d 411 ; Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561 ; Fremont Inv. & Loan v. Bertram, 90 A.D.3d 988, 934 N.Y.S.2d 822 ; Citimortgage, Inc. v. Brown, 83 A.D.3d 644, 645, 919 N.Y.S.2d 894 ). In this case, the appellant failed to proffer any explanation for his failure to timely answer the complaint. Thus, it is unnecessary to consider the issue of whether the appellant had a potentially meritorious defense to the action (see Wells Fargo Bank v. Malave, 107 A.D.3d 880, 968 N.Y.S.2d 127 ).
Accordingly, the Supreme Court correctly granted the plaintiff's motion.
To the extent that the brief filed by the pro se appellant purports to also be on behalf of the defendant Corrine E. Alba, we note that Corrine E. Alba is not an appellant, as no notice of appeal was filed on her behalf.
DILLON, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.