Opinion
04-28-2017
WELLS FARGO BANK, N.A., Successor by Merger to Wells Fargo Bank Minnesota, N.A., as Trustee, Formerly Known as Norwest Bank Minnesota, N.A., as Trustee for Certificate Holders of Saco1 Series, 1999–2, Plaintiff–Respondent, v. Bonnie M. DYSINGER, Defendant–Appellant, et al., Defendants.
Gary B. Storm, Glorieta, New Mexico, of The New Mexico Bar, Admitted Pro Hac Vice, for Defendant–Appellant. Parker Ibrahim & Berg LLC, New York City (Scott W. Parker of Counsel), for Plaintiff–Respondent.
Gary B. Storm, Glorieta, New Mexico, of The New Mexico Bar, Admitted Pro Hac Vice, for Defendant–Appellant. Parker Ibrahim & Berg LLC, New York City (Scott W. Parker of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
In this residential foreclosure action, Bonnie M. Dysinger (defendant) appeals from an order that denied her motion pursuant to CPLR 5015(a)(1) to vacate the default judgment of foreclosure on the ground of excusable default. We affirm. A party seeking to vacate an order or judgment on the ground of excusable default must offer a reasonable excuse for its default and a meritorious defense to the action (see Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 1049, 16 N.Y.S.3d 819 ; Calaci v. Allied Interstate, Inc. [Appeal No. 2], 108 A.D.3d 1127, 1128, 969 N.Y.S.2d 348 ). With respect to the reasonable excuse prong, the determination whether the moving party's excuse is reasonable lies within the trial court's sound discretion (see Wells Fargo Bank, NA, 131 A.D.3d at 1049, 16 N.Y.S.3d 819 ; Abbott v. Crown Mill Restoration Dev., LLC, 109 A.D.3d 1097, 1099, 972 N.Y.S.2d 117 ). Although defendant averred that she previously had received other documents from plaintiff and mistakenly believed that the summons and complaint likewise required no response, the summons contained language mandated by statute warning her that the failure to serve an answer to the complaint may result in default judgment and advising her to speak to an attorney (see generally RPAPL 1320 ). We thus conclude that defendant failed to proffer a reasonable excuse for her default (see U.S. Bank N.A. v. Brown, 147 A.D.3d 428, 429, 46 N.Y.S.3d 107 ; U.S. Bank N.A. v. Ahmed, 137 A.D.3d 1106, 1109, 29 N.Y.S.3d 33 ; Chase Home Fin., LLC v. Minott, 115 A.D.3d 634, 634–635, 981 N.Y.S.2d 757 ), and we need not consider whether she established a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Stewart, 146 A.D.3d 921, 922–923, 45 N.Y.S.3d 207 ; Abbott, 109 A.D.3d at 1100, 972 N.Y.S.2d 117 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.