WELLS FARGO BANK NATIONAL ASSOCIATION v. JEMAL (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Sharon Jemal appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated October 4, 2023.  The order, insofar as appealed from, denied those branches of that defendant's cross-motion which were pursuant to CPLR 3012(d) to compel the plaintiff to accept her late answer and to refer the matter for a foreclosure settlement conference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In November 2009, the plaintiff's predecessor in interest, Aurora Loan Services, LLC (hereinafter Aurora), commenced this action against the defendant Sharon Jemal (hereinafter the defendant), among others, to foreclose a consolidated mortgage on certain real property located in Brooklyn.  The defendant interposed an untimely answer, which Aurora rejected and treated as a limited notice of appearance.  In an order dated September 8, 2017, the Supreme Court substituted the plaintiff for Aurora.

After the plaintiff moved, among other things, for leave to enter a default judgment against the defendant, the defendant cross-moved, inter alia, pursuant to CPLR 3012(d) to compel the plaintiff to accept her late answer and to refer the matter for a foreclosure settlement conference.  By order dated October 4, 2023, the Supreme Court, among other things, denied those branches of the cross-motion.  The defendant appeals.

“Upon 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” (CPLR 3012[d];  see U.S. Bank Trust N.A. v. Roca, 244 AD3d 783, 784).  Thus, “to compel the plaintiff to accept late service of an answer pursuant to CPLR 3012(d), a defendant must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action” (U.S. Bank Trust N.A. v. Roca, 244 AD3d at 784 [internal quotation marks omitted];  see Carrington v. Northwell Health, 234 AD3d 659, 660).

Here, the defendant's denial of receipt of the summons and complaint was insufficient to demonstrate a reasonable excuse for the default in timely answering the complaint (see American Home Mtge. Servicing, Inc. v Arklis, 189 AD3d 1141, 1143;  Bank of N.Y. Mellon v. Tedesco, 174 AD3d 490, 492).  Since the defendant failed to establish a reasonable excuse for her default in timely answering the complaint, it is unnecessary to consider whether she established the existence of a potentially meritorious defense to the action (see American Home Mtge. Servicing, Inc. v Arklis, 189 AD3d at 1143).

Further, as the record demonstrates that, in 2010, the matter was scheduled for mandatory foreclosure settlement conferences and released from the conferencing part upon the defendant's nonappearance, the Supreme Court did not improvidently exercise its discretion in declining to refer the matter for a foreclosure settlement conference (see generally CPLR 3408).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.