Opinion
No. 2021-04545 Index No. 600825/19
06-29-2022
Windward Bora, LLC, respondent, v. Steven G. Lodico, et al., defendants, Wells Fargo, etc., appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Louis A. Levithan of counsel), for appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Louis A. Levithan of counsel), for appellant.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud, the defendant Wells Fargo appeals from an order of the Supreme Court, Suffolk County (Carmen Victoria St. George, J.), dated May 26, 2021. The order denied that branch of that defendant's motion which was, in effect, pursuant to CPLR 3012(d) to vacate its default in appearing or answering the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
On January 11, 2019, the plaintiff commenced this action against the defendant Wells Fargo, among others. Wells Fargo was served with the summons and complaint on February 1, 2019, but failed to appear or answer the complaint. By notice of motion dated January 15, 2021, Wells Fargo moved, inter alia, in effect, pursuant to CPLR 3012(d) to vacate its default in appearing or answering the complaint. In an order dated May 26, 2021, the Supreme Court denied that branch of Wells Fargo's motion, determining that it had failed to demonstrate a reasonable excuse for its default. Wells Fargo appeals.
CPLR 3012(d), which governs motions for leave to serve a late pleading and excuse a delay in answering and appearing, provides that "[u]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." "A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense" (U.S. Bank N.A. v Nakash, 195 A.D.3d 651, 653 [internal quotation marks omitted]; see OneWest Bank, FSB v Villafana, 187 A.D.3d 1201; Bank of N.Y. Mellon v Tedesco, 174 A.D.3d 490, 491). "'A motion to vacate a default is addressed to the sound discretion of the court'" (Wilmington Trust, N.A. v Ashe, 189 A.D.3d 1130, 1132, quoting Vujanic v Petrovic, 103 A.D.3d 791, 792). "Where the defendant fails to demonstrate a reasonable excuse for the default, the court need not consider whether a potentially meritorious defense was offered" (Wilmington Trust, N.A. v Ashe, 189 A.D.3d at 1132; see Vega v West Nostrand Realty, LLC, 169 A.D.3d 855, 856; Bank of N.Y. Mellon v Adago, 155 A.D.3d 594, 596).
Here, Wells Fargo failed to provide a reasonable excuse for its default (see Wilmington Trust, N.A. v Ashe, 189 A.D.3d at 1132; OneWest Bank v Schiffman, 175 A.D.3d 1543, 1545; Bank of N.Y. Mellon v Adago, 155 A.D.3d at 596). As such, the Supreme Court providently exercised its discretion in denying that branch of Wells Fargo's motion which was, in effect, pursuant to CPLR 3012(d) to vacate its default in appearing or answering the complaint. Inasmuch as Wells Fargo failed to demonstrate a reasonable excuse for the default, we need not consider whether it offered a potentially meritorious defense to the action (see Wilmington Trust, N.A. v Ashe, 189 A.D.3d at 1132; Vega v West Nostrand Realty, LLC, 169 A.D.3d at 856; Bank of N.Y. Mellon v Adago, 155 A.D.3d at 596).
BRATHWAITE NELSON, J.P., MILLER, ZAYAS and DOWLING, JJ., concur.