ELIZON MASTER PARTICIPATION TRUST BANK TRUST NATIONAL ASSOCIATION v. JEAN JACQUES (2026)

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), dated July 13, 2023.  The order denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate (1) an order of the same court entered November 16, 2022, denying the plaintiff's motion, among other things, for a judgment of foreclosure and sale, granting the unopposed motion of the defendants Kethsy K. Jean–Jacques and Stanley Jean for leave to renew their opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike those defendants' answer, affirmative defenses, and counterclaims, and for an order of reference, which had been granted in an order of the same court (Thomas A. Adams, J.) entered November 15, 2018, and, upon renewal, in effect, vacating so much of the order entered November 15, 2018, as granted those branches of the plaintiff's prior motion, and thereupon, in effect, denying those branches of the plaintiff's prior motion, and (2) an order of the same court (David P. Sullivan, J.) entered February 15, 2023, granting the unopposed motion of the defendants Kethsy K. Jean–Jacques and Stanley Jean for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order dated July 13, 2023, is affirmed, with costs.

In November 2013, the plaintiff's predecessor in interest, Bank of America, N.A., commenced this action against, among others, the defendants Kethsy K. Jean–Jacques and Stanley Jean (hereinafter together the defendants), inter alia, to foreclose a mortgage on certain real property located in Lynbrook.  Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, affirmative defenses, and counterclaims, for an order of reference, and to substitute Elizon Master Participation Trust I, U.S. Bank Trust National Association as the plaintiff.  In an order entered November 15, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.

Thereafter, the plaintiff moved, among other things, for a judgment of foreclosure and sale.  While that motion was pending, the defendants moved for leave to renew their opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, affirmative defenses, and counterclaims, and for an order of reference.  The plaintiff failed to oppose the defendants' motion.  In an order entered November 16, 2022, the Supreme Court denied the plaintiff's motion, inter alia, for a judgment of foreclosure and sale, granted the defendants' motion for leave to renew, and, upon renewal, in effect, vacated so much of the order entered November 15, 2018, as granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, affirmative defenses, and counterclaims, and for an order of reference, and thereupon, in effect, denied those branches of the plaintiff's prior motion.  In December 2022, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them based on the plaintiff's failure to demonstrate its strict compliance with RPAPL 1304, which the plaintiff also failed to oppose.  In an order entered February 15, 2023, the court granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

In February 2023, the plaintiff moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the orders entered November 16, 2022, and February 15, 2023.  By order dated July 13, 2023, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

“A party seeking to vacate an order or judgment entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (CitiMortgage, Inc. v. Ramlal, 238 AD3d 976, 977;  see CPLR 5015(a)(1);  Wilmington Sav. Fund Socy., FSB v Helal, 211 AD3d 991, 993).  “A motion to vacate a default is addressed to the sound discretion of the court” (CitiMortgage, Inc. v. Ramlal, 238 AD3d at 977;  see Logan v. 250 Pac., LLC, 210 AD3d 1064, 1066).  “The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default” (CitiMortgage, Inc. v. Ramlal, 238 AD3d at 977;  see Bambrick v. City of New York, 207 AD3d 610, 612;  Campbell v. TPK Heating, Ltd., 181 AD3d 642, 642).  “A claim of law office failure should be rejected where it is ‘conclusory and unsubstantiated or lacking in credibility’ ” (CitiMortgage, Inc. v. Ramlal, 238 AD3d at 977, quoting Campbell v. TPK Heating, Ltd., 181 AD3d at 643).

Here, the plaintiff failed to provide a reasonable excuse for its defaults, as its conclusory and unsubstantiated proffered excuse of law office failure was not supported by a detailed and credible explanation for its defaults (see id.;  Campbell v. TPK Heating, Ltd., 181 AD3d at 643).  Since the plaintiff failed to demonstrate a reasonable excuse for failing to oppose the defendants' motions, this Court need not consider whether the plaintiff demonstrated a potentially meritorious opposition to those motions (see CitiMortgage, Inc. v. Ramlal, 238 AD3d at 978).

Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the orders entered November 16, 2022, and February 15, 2023.

The parties' remaining contentions are without merit.

BARROS, J.P., CHRISTOPHER, LANDICINO and LOVE, JJ., concur.