CITIBANK v. VELA (2022)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Joseph Vela appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered September 16, 2019.  The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated September 20, 2016, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint, and a judgment of foreclosure and sale of the same court entered September 4, 2018, issued upon that defendant's default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint and the plaintiff's motion, among other things, for a judgment of foreclosure and sale.

ORDERED that the order entered September 16, 2019, is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant Joseph Vela, among others, to foreclose a mortgage encumbering certain real property located in Queens.  In an order dated September 20, 2016, the Supreme Court granted the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint.  On August 17, 2017, a referee issued a report, and in an order dated December 7, 2017, the court granted the plaintiff's unopposed motion to confirm the referee's report and for a judgment of foreclosure and sale.  A judgment of foreclosure and sale was entered on September 4, 2018.  In an order entered September 16, 2019, the court, inter alia, denied those branches of Vela's motion which were pursuant to CPLR 5015(a)(1) to vacate the order dated September 20, 2016, and the judgment of foreclosure and sale.  Vela appeals.

CPLR 5015(a)(1) permits a court to relieve a party from an order or judgment on the ground of “excusable default” (see Deutsche Bank Trust Co. Ams. v. Yoon, 204 A.D.3d 885, 164 N.Y.S.3d 836).  Here, contrary to Vela's contention, the Supreme Court providently exercised its discretion in determining that Vela's excuse of law office failure did not constitute a reasonable excuse for his failure to oppose the plaintiff's motions (see Halvatzis v. Perrone, 199 A.D.3d 788, 154 N.Y.S.3d 263;  Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d 784, 150 N.Y.S.3d 600;  U.S. Bank N.A. v. Adolphe, 170 A.D.3d 1236, 95 N.Y.S.3d 533;  LaSalle Bank, N.A. v. LoRusso, 155 A.D.3d 706, 64 N.Y.S.3d 102).  Since Vela failed to demonstrate a reasonable excuse for his default in opposing the plaintiff's motions, we need not reach the issue of whether Vela demonstrated a potentially meritorious opposition to the motions (see Wells Fargo Bank, N.A. v. Echeverria, 204 A.D.3d 955, 164 N.Y.S.3d 833).

CONNOLLY, J.P., RIVERA, ZAYAS and FORD, JJ., concur.