BANK OF AMERICA v. VIENER (2019)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Joseph Viener and Meryl Viener appeal from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 17, 2016.  The judgment of foreclosure and sale, upon an order of the same court entered January 26, 2016, inter alia, granting those branches of the plaintiff's motion which were for leave to enter a default judgment against those defendants and for an order of reference and denying that branch of their cross motion which was for leave to file a late answer, among other things, directed the sale of the subject property.

ORDERED that the judgment of foreclosure and sale is affirmed, with costs.

In March 2014, the plaintiff commenced this action against the defendants Joseph Viener and Meryl Viener (hereinafter together the defendants) to foreclose a mortgage.  The defendants failed to timely appear or answer the complaint.  In September 2015, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference.  The defendants cross-moved, inter alia, pursuant to CPLR 3012(d) for leave to file a late answer, arguing that their participation in mandatory foreclosure settlement conferences pursuant to CPLR 3408, and their participation in loan negotiations, excused their delay in answering.  By order entered January 26, 2016, the Supreme Court granted the plaintiff's motion and denied the defendants' cross motion.  Thereafter, the court, among other things, referred the matter to a referee to compute the amount due to the plaintiff on the mortgage loan.  On November 17, 2016, the court entered a judgment of foreclosure and sale.  The defendants appeal from the judgment of foreclosure and sale.

A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see Duprat v. BMW Fin. Servs., NA, LLC, 142 A.D.3d 946, 947, 38 N.Y.S.3d 32;  Citimortgage, Inc. v. Kowalski, 130 A.D.3d 558, 558, 13 N.Y.S.3d 468;  Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d 1012, 1012, 5 N.Y.S.3d 883).  The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Citimortgage, Inc. v. Kowalski, 130 A.D.3d at 558, 13 N.Y.S.3d 468;  Deutsche Bank Trust Co. Ams. v. Marous, 127 A.D.3d at 1012, 5 N.Y.S.3d 883).  Here, the defendants' appearance and participation in mandatory foreclosure settlement conferences pursuant to CPLR 3408, and their participation in loan modification negotiations, did not constitute a reasonable excuse for their delay in answering the complaint (see Wells Fargo Bank, N.A. v. Singh, 153 A.D.3d 893, 893, 57 N.Y.S.3d 903;  US Bank N.A. v. Louis, 148 A.D.3d 758, 759, 48 N.Y.S.3d 458;  JPMorgan Chase Bank, N.A. v. Comfort Boampong, 145 A.D.3d 981, 982, 44 N.Y.S.3d 189;  Federal Natl. Mtge. Assn. v. Zapata, 143 A.D.3d 857, 858, 40 N.Y.S.3d 438;  U.S. Bank N.A. v. Ahmed, 137 A.D.3d 1106, 1109, 29 N.Y.S.3d 33;  Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 995, 986 N.Y.S.2d 578;  HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32).

Since the defendants failed to provide a reasonable excuse for their delay in answering, it is not necessary to determine whether they demonstrated a potentially meritorious defense to the action (see Aurora Loan Servs., LLC v. Movtady, 165 A.D.3d 1025, 1027, 87 N.Y.S.3d 114;  US Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278;  Citimortgage, Inc. v. Stover, 124 A.D.3d 575, 576, 2 N.Y.S.3d 147;  HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d at 648, 983 N.Y.S.2d 32).

Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference, and to deny that branch of their cross motion which was for leave to file a late answer.

SCHEINKMAN, P.J., BALKIN, MILLER and HINDS–RADIX, JJ., concur.