Opinion
09-28-2017
WELLS FARGO BANK N.A., Plaintiff–Respondent, v. Ricardo JAVIER, Defendant–Appellant, New York State Department of Finance, et al., Defendants.
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for appellant. Reed Smith LLP, New York (Andrew Messite of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for appellant.
Reed Smith LLP, New York (Andrew Messite of counsel), for respondent.
Judgment of foreclosure and sale, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 13, 2017, unanimously affirmed, without costs. Appeal from order, same court (Norma Ruiz, J.), entered March 31, 2016, which, upon renewal, denied defendant Ricardo Javier's motion to extend the time to answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendant failed to show both a reasonable excuse for his default and a potentially meritorious defense to this foreclosure action (see U.S. Bank N.A. v. Brown, 147 A.D.3d 428, 429, 46 N.Y.S.3d 107 [1st Dept.2017] ). His assertion that he had been "led to believe" (by parties unnamed) that he did not need to answer the complaint because he had submitted a loan modification application is not a reasonable excuse, in view of the clear warning contained in the summons served in this action that failure to respond could result in a default judgment and loss of his home (see id. ). Given his failure to proffer a reasonable excuse for the default, we need not determine whether defendant demonstrated a potentially meritorious defense to the action (see id. at 429–430, 46 N.Y.S.3d 107 ).
The referee's failure to give notice of the proceedings (see CPLR 4313 ) to ascertain the amount due on the mortgage does not require reversal of the judgment of foreclosure and sale. Both parties submitted evidence to the court—the ultimate arbiter of the issue—in their motions to confirm or vacate the referee's report, and the court correctly found that defendant's evidence failed to rebut plaintiff's evidence (see Union Chelsea Natl. Bank v. Rumican 190 Corp., 257 A.D.2d 463, 683 N.Y.S.2d 530 [1st Dept.1999], lv. dismissed in part, denied in part 93 N.Y.2d 989, 695 N.Y.S.2d 742, 717 N.E.2d 1079 [1999] ; Adelman v. Fremd, 234 A.D.2d 488, 651 N.Y.S.2d 604 [2d Dept.1996] ).
TOM, J.P., MAZZARELLI, ANDRIAS, OING, SINGH, JJ., concur.