Opinion
2019–14102 Index No. 3287/17
11-16-2022
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Norma Jean PIERRE, etc., et al., appellants, et al., defendants.
New York Legal Assistance Group, New York, NY (Beth Goldman and Noelle F. Eberts of counsel), for appellant Norma Jean Pierre. McCalla Raymer Leibert Pierce, LLC, New York, NY (Daniel S. LoPresti of counsel), for respondent.
New York Legal Assistance Group, New York, NY (Beth Goldman and Noelle F. Eberts of counsel), for appellant Norma Jean Pierre.
McCalla Raymer Leibert Pierce, LLC, New York, NY (Daniel S. LoPresti of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Norma Jean Pierre and Normel Jean Pierre appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 9, 2019. The order denied those defendants’ motion, in effect, to vacate their default in answering the complaint and to compel the plaintiff to accept their late answer.
ORDERED that the appeal by the defendant Normel Jean Pierre is dismissed as abandoned; and it is further,
ORDERED that the order is affirmed on the appeal by the defendant Norma Jean Pierre; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal by the defendant Normel Jean Pierre must be dismissed as abandoned, as the appellant's brief has been submitted only on behalf of the defendant Norma Jean Pierre (see Ocwen Loan Servicing v. Ponce, 206 A.D.3d 1005, 1006, 168 N.Y.S.3d 865 ; JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1512, 1513, 106 N.Y.S.3d 903 ).
In 2017, the plaintiff commenced this action against, among others, Norma Jean Pierre, to foreclose a mortgage on certain real property located in Nassau County. Norma Jean Pierre failed to serve an answer to the complaint. The plaintiff moved, inter alia, for leave to enter a default judgment. Subsequently, Norma Jean Pierre and Normel Jean Pierre (hereinafter together the Pierre defendants) moved, in effect, to vacate their default in answering the complaint and to compel the plaintiff to accept their late answer. The Supreme Court denied the Pierre defendants’ motion. This appeal ensued.
"A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" ( Bank of Am., N.A. v. Viener, 172 A.D.3d 795, 796, 100 N.Y.S.3d 293 ; see 195–197 Hewes, LLC v. Citimortgage, Inc., 208 A.D.3d 827, 174 N.Y.S.3d 745 ). "[T]he determination of whether an excuse is reasonable lies within the sound discretion of the trial court" ( Davis v. 574 Lafa Corp., 206 A.D.3d 613, 615, 170 N.Y.S.3d 126 ; see 126 Henry St., Inc. v. Cater, 197 A.D.3d 598, 600, 153 N.Y.S.3d 85 ). "Law office failure may be accepted as a reasonable excuse in the exercise of the court's sound discretion, and a defendant may establish a reasonable excuse for his [or her] default based upon his [or her] attorney's failure to respond to the summons and complaint" ( U.S. Bank Trust, N.A. v. Gomez, 205 A.D.3d 839, 840, 165 N.Y.S.3d 883 [citation and internal quotation marks omitted]). However, "[a] conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse" ( id. at 840, 165 N.Y.S.3d 883 [internal quotation marks omitted]).
Here, the Pierre defendants’ conclusory and unsubstantiated allegations of law office failure were insufficient to amount to a reasonable excuse (see id. at 841, 165 N.Y.S.3d 883 ; Best Modular Structures, Sets & Servs., LLC v. Flynn, 188 A.D.3d 1130, 1131, 132 N.Y.S.3d 856 ). Since the Pierre defendants failed to demonstrate a reasonable excuse for their default, it is unnecessary to determine whether they demonstrated a potentially meritorious defense (see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d 784, 786–787, 150 N.Y.S.3d 600 ).
Accordingly, the Supreme Court properly denied the Pierre defendants’ motion, in effect, to vacate their default in answering the complaint and to compel the plaintiff to accept their late answer.
CONNOLLY, J.P., RIVERA, ZAYAS and FORD, JJ., concur.