NYCTL 2019 TRUST v. 54 GREENE AVENUE JV LLC (2025)

DECISION & ORDER

In an action to foreclose a tax lien, the defendant 54 Greene Avenue JV, LLC, appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated November 21, 2023.  The order denied that branch of that defendant's motion which was to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered December 15, 2022, upon its failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs.

In November 2020, the plaintiffs commenced this action against the defendant 54 Greene Avenue JV, LLC (hereinafter the defendant), among others, to foreclose a tax lien on certain real property located in Brooklyn (hereinafter the property).  The defendant failed to appear or answer the complaint.  In an order dated May 11, 2022, the Supreme Court, inter alia, appointed a referee to compute the amount due to the plaintiffs.  In an order and judgment of foreclosure and sale entered December 15, 2022, the court, among other things, confirmed the referee's report and directed the sale of the property.  In September 2023, the defendant moved, inter alia, to vacate the order and judgment of foreclosure and sale.  In an order dated November 21, 2023, the court denied that branch of the defendant's motion.  The defendant appeals.

“A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Barnett v. Diamond, Fin. Co., Inc., 202 A.D.3d 651, 652, 163 N.Y.S.3d 146;  see Nico v. Olajitan, 229 A.D.3d 561, 214 N.Y.S.3d 774).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court” (Logan v. 250 Pac., LLC, 210 A.D.3d 1064, 1066, 180 N.Y.S.3d 184;  see Melendez v. John P. Picone, Inc., 215 A.D.3d 665, 665, 187 N.Y.S.3d 82).

Here, the defendant's conclusory denial of receipt of the summons and complaint served through the Secretary of State did not amount to a reasonable excuse for the defendant ‘s default (see Almonte v. Soldati Realty, Inc., 231 A.D.3d 1103, 1105, 219 N.Y.S.3d 144;  Dove v. 143 Sch. St. Realty Corp., 172 A.D.3d 1315, 1317, 101 N.Y.S.3d 461).  In any event, the defendant failed to demonstrate a potentially meritorious defense to the action (see NYCTL 1997–1 Trust v. Nillas, 288 A.D.2d 279, 732 N.Y.S.2d 872).

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to vacate the order and judgment of foreclosure and sale.

DILLON, J.P., BRATHWAITE NELSON, WARHIT and LOVE, JJ., concur.